Petition for Writ of Certiorari — Alex Emric Jones, et al., Applicants v. Erica Lafferty, et al.

APPENDIX A

Opinion of the Connecticut Supreme Court, Lafferty v. Jones,

SC20327 (July 23, 2020).

APP.1

****************************************************************

The ‘‘officially released’’ date that appears near the

beginning of this opinion is the date the opinion was

released as a slip opinion. The operative date for the

beginning of all time periods for filing postopinion

motions and petitions for certification is the ‘‘officially

released’’ date appearing in the opinion.

This opinion is subject to revisions and editorial

changes, not of a substantive nature, and corrections

of a technical nature prior to publication in the

Connecticut Law Journal.

****************************************************************

APP.2

ERICA LAFFERTY ET AL. v. ALEX

EMRIC JONES ET AL.

WILLIAM SHERLACH v.

ALEX JONES ET AL.

WILLIAM SHERLACH ET AL. v.

ALEX EMRIC JONES ET AL.

(SC 20327)

Robinson, C. J., Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.*

Argued September 26, 2019—officially released July 23, 2020**

Procedural History

Action, in the first case, to recover damages for, inter

alia, invasion of privacy, and for other relief, brought

to the Superior Court in the judicial district of Fairfield,

where the defendant Alex Emric Jones et al. filed a

special motion to dismiss, action, in the second case,

to recover damages for, inter alia, invasion of privacy,

and for other relief, brought to the Superior Court in

the judicial district of Fairfield, where the court, Bellis,

J., granted the plaintiff William Sherlach’s motion to

add Robert Parker as a plaintiff, and the defendant Alex

Jones et al. filed a special motion to dismiss, and action,

in the third case, to recover damages for, inter alia,

invasion of privacy, and for other relief, brought to the

Superior Court in the judicial district of Fairfield, where

the defendant Alex Emric Jones et al. filed a special

motion to dismiss; thereafter, the cases were consolidated and transferred to the Complex Litigation Docket,

judicial district of Waterbury; subsequently, the court,

Bellis, J., granted the motions for sanctions filed by

the plaintiffs in each case, and the defendant Alex Emric

Jones et al., upon certification by the Chief Justice

pursuant to General Statutes § 52-265a that a matter of

substantial public interest was at issue, appealed to this

court. Affirmed.

Norman A. Pattis, with whom was Kevin Smith, for

the appellants (named defendant et al.).

Joshua D. Koskoff, with whom was Alinor C. Sterling, for the appellees (plaintiffs).

APP.3

Opinion

ROBINSON, C. J. This public interest appeal presents

the opportunity to consider the scope of a trial court’s

inherent authority to sanction a party to litigation for

his or her remarks about the case in light of that party’s

right to free speech under the first amendment to the

United States constitution. The plaintiffs in these cases,

a first responder and family members of those killed in

the mass shooting at Sandy Hook Elementary School,1

brought these actions against the defendants, Alex

Emric Jones and several of his affiliated corporate entities,2 claiming that statements made on Jones’ radio

show advancing certain conspiracy theories about the

Sandy Hook shooting were tortious in nature. The

defendants appeal3 from the orders of the trial court

sanctioning them by revoking their opportunity to pursue the special motions to dismiss provided by Connecticut’s anti-SLAPP4 statute, General Statutes § 52-196a,5

issued after the trial court found that the defendants

had violated numerous discovery orders and that Jones

personally had engaged in harassing and intimidating

behavior directed at the plaintiffs’ counsel, Attorney

Christopher Mattei. On appeal, the defendants claim,

inter alia, that the trial court (1) improperly sanctioned

the defendants because Jones’ speech was protected

under the first amendment, and (2) abused its discretion

in sanctioning the defendants because the trial court

improperly permitted discovery that exceeded the limited scope contemplated by § 52-196a (d). The defendants also claim that the trial court violated their due

process rights by failing to afford them sufficient notice

and a meaningful opportunity to be heard before issuing

the sanctions orders. We disagree and, accordingly,

affirm the trial court’s sanctions orders.

The record reveals the following relevant facts and

procedural history. On December 14, 2012, Adam Lanza

murdered twenty children and six staff members in a

mass shooting at Sandy Hook Elementary School in

Newtown. Some conspiracy theorists questioned the

circumstances surrounding the shooting and called it

a hoax. In response to statements made by Jones and

other individuals featured on his radio show, the plaintiffs brought three separate civil actions against the

defendants in 2018. The complaints alleged counts of

invasion of privacy by false light, defamation and defamation per se, intentional infliction of emotional distress, and negligent infliction of emotional distress, all

of which were accompanied by counts of civil conspiracy. In addition, the complaints claimed violations of

the Connecticut Unfair Trade Practices Act, General

Statutes § 42-110a et seq. The trial court consolidated

all three cases.

In November, 2018, the defendants filed special

motions to dismiss the plaintiffs’ complaints pursuant

to the anti-SLAPP statute. See General Statutes § 52-

APP.4

196a (b). In order to respond to the special motions

to dismiss, the plaintiffs moved for limited discovery

pursuant to § 52-196a (d). The plaintiffs argued that

they had demonstrated good cause to entitle them to

‘‘specified and limited discovery relevant to the special

motion[s] to dismiss’’ pursuant to § 52-196a (d) and

asked the trial court to permit discovery on every issue

raised by the defendants’ special motions to dismiss to

allow them to demonstrate probable cause of success

on the merits of their complaints. See General Statutes

§ 52-196a (e) (3). The defendants opposed the plaintiffs’

motion for limited discovery, claiming that the plaintiffs’ broad discovery requests were contrary to the

purpose of the anti-SLAPP statute and that the plaintiffs

had failed to show good cause.

With respect to the specific discovery requests, the

plaintiffs initially requested five special interrogatories

and twenty-one requests for production from Jones.6

At a hearing on December 17, 2018, the trial court found

good cause and granted the plaintiffs’ motion for limited

discovery but indicated that it would not grant all of

the plaintiffs’ requests and would consider each of the

defendants’ objections individually. The trial court then

allowed the parties numerous opportunities to mediate

disputes and delineate their discovery obligations at

discovery status conferences.

After narrowing the plaintiffs’ requests, the trial court

initially ordered the defendants to produce their discovery compliance by February 23, 2019. The defendants

failed to meet that deadline.7 The defendants then filed

motions for an extension of time, which the trial court

granted, allowing them until March 20, 2019, to produce

their discovery materials. In granting the motions, the

trial court ‘‘urge[d] the defendants to honor this court

ordered deadline because the defendants are the ones

[who] want their motion[s] to dismiss adjudicated, but

if they’re going to continue to ignore court deadlines,

they’re going to lose the ability . . . to pursue their

[special] motion[s] to dismiss.’’

Two days before the March 20, 2019 discovery deadline, the defendants again moved for an extension of

time. This time, the trial court denied the motions, indicating at a hearing with the parties that the defendants

had not substantially complied with its discovery

orders. The trial court explained that the ‘‘defendants,

at this point, are coming from a position of weakness.

They’ve blown past the court’s deadlines. There hasn’t

been a single piece of paper [produced] or interrogatory

answered.’’ In light of the defendants’ noncompliance,

the plaintiffs moved for sanctions on March 20, 2019.

Specifically, the plaintiffs argued that, under Practice

Book § 13-148 and the trial court’s inherent authority,

the court should impose sanctions for the defendants’

violations of discovery deadlines.

At a hearing on April 3, 2019, the trial court began to

APP.5

address the plaintiffs’ motions for sanctions but delayed

ruling on them to allow the defendants’ counsel time

to resolve an unspecified ethical concern. Subsequently,

on April 10, 2019, the court heard argument on the

motions for sanctions. The defendants argued that they

had responded by that time to almost every discovery

request and that they were in substantial compliance

with the court’s discovery orders. The trial court agreed

with the defendants, concluding that, although they had

not complied with every discovery request, the production to that point was sufficient to allow them to pursue

the merits of the special motions to dismiss.

Subsequently, in late May, 2019, the plaintiffs brought

additional discovery issues to the trial court’s attention.

Specifically, the plaintiffs requested, inter alia, additional responsive marketing data from Google Analytics

and a complete search of Jones’ cell phone. After

another hearing, the trial court ordered the defendants

to produce marketing data responsive to the court

approved production requests. The court warned that

it would ‘‘consider appropriate sanctions for the defendants’ failure to fully and fairly comply’’ with its latest orders.

On Friday, June 14, 2019, Jones and his attorney,

Norman A. Pattis, appeared together on Jones’ radio

broadcast to discuss the pending case. Jones explained

to the broadcast audience that someone had embedded

child pornography in e-mails turned over to the plaintiffs in discovery. Jones then began a long invective

against those whom he believed had planted the child

pornography, which we quote in relevant part:9

‘‘Jones: I’m here to tell the little pimps, the Senator

Murphys and the prosecutor, the Obama appointed

prosecutor [who’s] doing all this, bitch, I don’t need to

talk about poor dead kids to have listeners.

***

‘‘Jones: They say you’re a pedophile. We knew it was

coming. And when the Obama appointed [United States]

attorney demanded, out of 9.6 million e-mails in the

last seven years since Sandy Hook, metadata, which

meant tracking the e-mails and where they went, well,

we fought it in court. The judge ordered for us to release

a large number of those e-mails. That’s Chris Mattei

[who] got that done, a very interesting individual with

the firm of Koskoff & Koskoff run by Senator Murphy

and Senator Blumenthal that say, for America to survive, quote, I must be taken off the air. . . .

‘‘It was hidden. In Sandy Hook e-mails threatening us,

there was child porn. . . . And they get these e-mails

a few weeks ago, and they go right to the [Federal

Bureau of Investigation (FBI)] and say, ‘[w]e’ve got him

with child porn.’ The FBI says, ‘[h]e never opened it.

He didn’t send it.’ And then they act like, oh, they’re

our friends. They’re not going to do anything with

APP.6

this. . . .

‘‘Now, I wonder who during discovery would send

e-mails out of millions and then know what to search

and look at. . . . One million dollars on conviction for

who sent the child porn. . . . We’re going to turn you

loose, the [internet service providers], the law enforcement. You know who did it. . . .

‘‘You think when you call up, oh, we’ll protect you.

We found the child porn. I like women with big giant

tits and big asses. I don’t like kids like you goddamn[ed]

rapists, f-heads. In fact, you fucks are going to get it,

you fucking child molesters. I’ll fucking get you in the

end, you fucks. . . . You’re trying to set me up with

child porn. I’m going to get your ass. One million dollars.

One million dollars, you little gang members. One million dollars to put your head on a pike. One million

dollars, bitch. I’m going to get your ass. You understand

me now? You’re not going to ever defeat Texas, you

sacks of shit. So you get ready for that.

***

‘‘Jones: Why does law enforcement say $5000, dead

or alive? One million. ‘Cause we all know who did it.

***

‘‘Jones: What a nice group of Democrats. How surprising. What nice people. Chris Mattei, Chris Mattei. Let’s

zoom in on Chris Mattei. Oh, nice little Chris Mattei.

What a good American. What a good boy. You think

you’ll put on me—anyways, I’m done. Total war. You

want it? You got it. I’m not into kids like your Democratic party, you cocksuckers. So get ready. . . .

‘‘Jones: The point is, I’m not putting up . . . with

these guys anymore, man, and their behavior, ‘cause

I’m not an idiot. They literally went right in there and

found this hidden stuff. Oh, my God. Oh, my God. And

they’re my friends. We want to protect you now, Alex.

Oh, you’re not going to get in trouble for what we found.

F-U man, F-U to hell. I pray God, not anybody else, God

visit[s] vengeance upon you in the name of Jesus Christ

and all the saints. I pray for divine intervention against

the powers of Satan. I literally would never have sex

with children. I don’t like having sex with children. I

would never have sex with children. I am not a Democrat. I am not a liberal. I do not cut children’s genitals

off like the left does.

***

‘‘Jones: I want them to. I want them to track it back

to you know who. . . . I wonder who the person of

interest is.

‘‘Pattis: Look, are you showing Chris Mattei’s photograph on here?10

‘‘Jones: Oh, no. That was an accidental cut. He’s a nice

Obama boy. . . . He’s a white . . . boy that thinks he

APP.7

owns America.

***

‘‘Jones: That’s why I said, one million. I’m not BSing. One million dollars when they are convicted. The

bounty is out, bitches, and you know, you feds, they’re

going to know you did it. They’re going to get your ass,

you little dirt bag. One million, bitch. It’s out on your

ass. . . .

‘‘Jones: One million—I pay all debts—one million is

on the street for who sent me—and we’re going to get

the e-mails. We’re going to publish them next week.

And we’re going to make a whole thing. We’re not going

to show the child porn, but we’re going to put the e-mails

out, and we’re going to show you where they came

from. One million on the street. . . .

‘‘Jones: A million dollars is after them. So I bet you’ll

sleep real good tonight, little jerk. ‘Cause your own

buddies are going to turn you in, and you’re going to

go to prison, you little white . . . boy jerkoff. Son of

a bitch. I mean, I can’t handle them. They want war?

They’re going to get war. I am sick of these people, a

bunch of chicken craps [who] have taken this country

over [who] want to attack real Americans. . . .

‘‘Jones: We’re going to get them. One million. One

million dollars is on the street against you. You didn’t

destroy America on time, bitch. I am pissed, man. I will

give everything I have to stop living in this world with

these people.

***

‘‘Jones: I am sure that [the United States] attorneys

appointed by Obama are sweet little cupcakes. Come

on. . . .

‘‘Jones: I don’t even think errand boy did this. I’m

actually not saying that.11 . . . And so, if they want

war—you know, it’s not a threat. It’s like an AC/DC

song. If you want blood, you’ve got it. Blood on the

streets, man. . . .

‘‘Jones: And I’m just asking the Pentagon and the

patriots that are left, and 4chan and 8chan, and Anonymous, anybody [who’s] a patriot, I am under attack,

and if they bring me down, they’ll bring you down. I

just have faith in you. I’m under attack. And I summon

the mean war. I summon all of it against the enemy.

. . .

‘‘Jones: . . . How would you like an Obama

appointed [United States] attorney, man, [who] literally

found a needle in a field of haystacks and tried to go

to the feds and get me indicted? . . . And now I ask

my listeners and everyone, you claimed I sent people.

I never sent anybody. And I want legal and lawful action.

But I pray to God that America awaken[s]. Will Texas

be defeated? You will now decide. This is war.’’ (Foot-

APP.8

notes added.)

The very next Monday, June 17, 2019, the plaintiffs

filed motions asking the trial court to review the broadcast. The plaintiffs also asked for ‘‘an expedited briefing

schedule concerning what orders must issue in connection with [Jones’] on-air statements . . . .’’ In those

motions, the plaintiffs explained that a data firm they

had retained located child pornography in the defendants’ metadata and that they ‘‘immediately contacted

the FBI.’’ That same day, the trial court issued an order

that ‘‘[c]ounsel should be prepared to address the matter at tomorrow’s hearing . . . .’’

The next day, June 18, 2019, the parties appeared and

argued whether the trial court should order sanctions

as a result of the broadcast. After hearing argument,

the trial court imposed sanctions against the defendants

and revoked their opportunity to pursue the merits of

their special motions to dismiss pursuant to § 52-196a

(b).12 This expedited public interest appeal followed.

See footnote 3 of this opinion.

On appeal, the defendants claim that the trial court

(1) improperly sanctioned them in violation of their

first amendment rights, (2) abused its discretion in fashioning sanctions for discovery noncompliance, and (3)

denied them due process by failing to afford them notice

and a meaningful opportunity to be heard.

I

We begin with the defendants’ challenge to the merits

of the sanctions orders, which the trial court based

on two grounds. First, the trial court found that the

defendants were noncompliant with discovery, with

their failure to comply with additional production deadlines viewed in light of their previous noncompliance.

Second, the trial court found that, on the June 14, 2019

broadcast, Jones accused Mattei of committing a felony

and then harassed, intimidated, and threatened him.13

Because the trial court provided these two bases for

its sanctions orders, we must assess the court’s orders

both for their propriety as sanctions and their constitutionality. We first conclude that the sanctions did not

run afoul of the first amendment because they

addressed speech that was an imminent and likely

threat to the administration of justice. We also conclude

that these two rationales, when considered together,

provided sufficient grounds for sanctioning the defendants. Accordingly, it was not an abuse of the trial

court’s discretion to sanction the defendants for their

discovery violations and Jones’ vituperative speech.

A

We first consider whether the trial court’s sanctions

were permissible under the first amendment’s free

speech protections. The defendants argue that the trial

court’s ruling is ‘‘bereft of any analysis of the first

amendment’’ and that the court’s inherent authority is

APP.9

not an adequate ground to sanction them on the basis

of Jones’ speech. The defendants further contend that,

because Jones’ broadcast was not a true threat, did not

incite violence, and did not constitute fighting words,

the trial court’s sanction was impermissible under the

first amendment. In response, the plaintiffs first submit

that the sanctions were a constitutionally permissible

exercise of the trial court’s authority to sanction bad

faith litigation misconduct, which includes the harassment and intimidation of opposing counsel. Second, the

plaintiffs argue that the broadcast was not protected

speech because it was a true threat. Although we agree

with the defendants that a trial court’s inherent authority is subject to constitutional limitations, we nevertheless conclude that Jones’ speech during his June 14,

2019 broadcast was not protected by the first amendment because it posed an imminent and likely threat

to the administration of justice.

It is well settled that a trial court ‘‘has the inherent

authority to impose sanctions against an attorney and

his client for a course of claimed dilatory, bad faith and

harassing litigation conduct . . . .’’ (Internal quotation

marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon, 250

Conn. 147, 735 A.2d 333 (1999); see also R. Pushaw, ‘‘The

Inherent Powers of Federal Courts and the Structural

Constitution,’’ 86 Iowa L. Rev. 735, 764–65 (2001) (‘‘The

inherent authority to administer judicial proceedings

carries with it a corollary power to control those

involved in court business—parties, witnesses, jurors,

spectators, and lawyers—to maintain order, decorum,

and respect. Sanctions have long been deemed imperative to protect against the disruption or abuse of judicial

processes and to ensure obedience to a court’s orders,

thereby preserving its authority and dignity.’’ (Footnote omitted.)).

A long line of decisions makes clear that this inherent

authority to sanction a party extends to sanctioning

participants to litigation for engaging in threatening and

harassing behavior. See Maurice v. Chester Housing

Associates Ltd. Partnership, 188 Conn. App. 21, 22–23,

204 A.3d 71 (dismissing writ of error stemming from

sanctions order, issued under court’s inherent authority, against nonparty partner in defendant partnership

for sending ‘‘an inappropriate e-mail’’ to opposing counsel and telling her to ‘‘sit on his fucking head’’ (internal

quotation marks omitted)), cert. denied, 331 Conn. 923,

206 A.3d 765 (2019);14 see also Waivio v. Board of Trustees of the University of Illinois, 290 Fed. Appx. 935,

936–37 (7th Cir. 2008) (affirming judgment of dismissal

when plaintiff engaged in ‘‘delaying and threatening

conduct in the course of the litigation,’’ including threatening to kill opposing counsel), cert. denied, 557 U.S.

926, 129 S. Ct. 2842, 174 L. Ed. 2d 563 (2009); Thomas

v. Tenneco Packaging Co., 293 F.3d 1306, 1308 (11th Cir.

APP.10

2002) (upholding sanctions against lawyer for filings

‘‘directed at opposing counsel’’ that trial court ‘‘deemed

abusive and offensive’’); Carroll v. The Jaques Admiralty Law Firm, P.C., 110 F.3d 290, 291–93 (5th Cir.

1997) (upholding sanction of defendant attorney who

engaged in ‘‘abusive conduct at his deposition’’);

Michael v. Boutwell, 138 F. Supp. 3d 761, 785–87 (N.D.

Miss. 2015) (concluding that defendant’s threatening of

witness warranted sanction of attorney’s fees, expenses

and $1000 fine but not dispositive sanction of default

judgment); Kalwasinski v. Ryan, Docket No. 96-CV6475, 2007 WL 2743434, *3 (W.D.N.Y. September 17,

2007) (dismissing self-represented inmate’s federal civil

rights action because he ‘‘deliberately and intentionally

participat[ed] in making threats of physical harm

against parties and witnesses in his case’’); Fidelity

National Title Ins. Co. of New York v. Intercounty

National Title Ins. Co., Docket No. 00 C 5658, 2002

WL 1433717, *12–13 (N.D. Ill. July 2, 2002) (dismissing

defendant’s counterclaims ‘‘[p]ursuant to [the court’s]

inherent authority to sanction bad faith conduct in litigation’’ on basis of his ‘‘abusive and threatening’’ letter

to opposing counsel).

When acting under its inherent powers, a court

should proceed with caution; ‘‘[b]ecause of their very

potency, inherent powers must be exercised with

restraint and discretion.’’ Chambers v. NASCO, Inc.,

501 U.S. 32, 44, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991).

This cautionary approach requires that any exercise of

the inherent power to sanction be limited by constitutional concerns, such as the requirements of due process. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S.

752, 767, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980) (‘‘[l]ike

other sanctions, attorney’s fees certainly should not be

assessed lightly or without fair notice and an opportunity for a hearing on the record’’); R. Pushaw, supra,

86 Iowa L. Rev. 784 (‘‘[t]o be sure, the [c]ourt has recognized that the [c]onstitution limits federal judges’ inherent powers’’). As a result, a trial court’s exercise of its

inherent authority to sanction a party for harassing or

threatening speech in the context of litigation is limited

by the protections of the first amendment.15 ‘‘The [f]irst

[a]mendment requires courts to tread warily when

restricting litigants’ speech. They may do so only when

necessary to protect the fairness or integrity of the

particular litigation before them.’’ Bank of Hope v.

Chon, 938 F.3d 389, 397 (3d Cir. 2019); see also Economy

Carpets Manufacturers & Distributors, Inc. v. Better

Business Bureau of Baton Rouge Area, Inc., 330 So.

2d 301, 304 (La. 1976) (‘‘the judicial authority, as all

powers of government, is not without limit, and [when]

it is asserted an individual’s right of free speech has

been abridged by the exercise of that power, the burden

is [on] us to define its limitations’’). Speech that might

otherwise be protected may be restricted under certain

circumstances because of pending judicial proceedings.

APP.11

See, e.g., In re Brianna B., 66 Conn. App. 695, 701, 785

A.2d 1189 (2001) (‘‘[t]he [United States Supreme Court]

has . . . emphasized the vitality of individual rights to

free speech during legal proceedings, such as discovery,

but that the right to free speech is not without limit’’).

Fundamental first amendment principles guide our

analysis of the defendants’ claims in this appeal. ‘‘The

[f]irst [a]mendment, applicable to the [s]tates through

the [due process clause of the] [f]ourteenth [a]mendment, provides that Congress shall make no law . . .

abridging the freedom of speech. The hallmark of the

protection of free speech is to allow free trade in ideas—

even ideas that the overwhelming majority of people

might find distasteful or discomforting. . . . Thus, the

[f]irst [a]mendment ordinarily denies [the government]

the power to prohibit dissemination of social, economic

and political doctrine [that] a vast majority of its citizens

believes to be false and fraught with evil consequence.

. . . The [f]irst [a]mendment affords protection to symbolic or expressive conduct as well as to actual speech.

. . . The protections afforded by the [f]irst [a]mendment, however, are not absolute, and we have long

recognized that the government may regulate certain

categories of expression consistent with the [c]onstitution.’’ (Internal quotation marks omitted.) State v. Moulton, 310 Conn. 337, 348–49, 78 A.3d 55 (2013), quoting

Virginia v. Black, 538 U.S. 343, 358, 123 S. Ct. 1536,

155 L. Ed. 2d 535 (2003).

Whether the trial court’s sanctions constitute an

impermissible restriction on the defendants’ speech

presents a question of law, over which our review is

plenary. ‘‘In certain first amendment contexts . . .

appellate courts are bound to apply a de novo standard

of review. . . . [In such cases], the inquiry into the

protected status of . . . speech is one of law, not fact.

. . . As such, an appellate court is compelled to examine for [itself] the . . . statements [at] issue and the

circumstances under which they [were] made to [determine] whether . . . they . . . are of a character [that]

the principles of the [f]irst [a]mendment . . . protect.

. . . [I]n cases raising [f]irst [a]mendment issues [the

United States Supreme Court has] repeatedly held that

an appellate court has an obligation to make an independent examination of the whole record in order to make

sure that the judgment does not constitute a forbidden

intrusion [in] the field of free expression. New York

Times Co. v. Sullivan, [376 U.S. 254, 284–86, 84 S. Ct.

710, 11 L. Ed. 2d 686 (1964)]. . . . This rule of independent review was forged in recognition that a [reviewing]

[c]ourt’s duty is not limited to the elaboration of constitutional principles . . . . [Rather, an appellate court]

must also in proper cases review the evidence to make

certain that those principles have been constitutionally

applied. . . . Therefore, even though, ordinarily . . .

[f]indings of fact . . . shall not be set aside unless

clearly erroneous, [appellate courts] are obliged to [per-

APP.12

form] a fresh examination of crucial facts under the

rule of independent review.’’ (Internal quotation marks

omitted.) State v. Krijger, 313 Conn. 434, 446–47, 97

A.3d 946 (2014). However, ‘‘the heightened scrutiny that

this court applies in first amendment cases does not

authorize us to make credibility determinations regarding disputed issues of fact.’’ Id., 447.

Whether judicial sanctions imposed for extrajudicial

statements made by a party to pending litigation run

afoul of the first amendment presents a question of first

impression in Connecticut. We find instructive the test

that the United States Supreme Court has adopted for

considering the constitutionality of contempt as a sanction for out-of-court statements commenting on judicial

proceedings.16 The leading case is Bridges v. California,

314 U.S. 252, 275–77, 62 S. Ct. 190, 86 L. Ed. 192 (1941), in

which the Supreme Court considered whether a union

leader could be held in contempt when a newspaper

published statements that he had made threatening a

strike. The court considered whether the speech presented a ‘‘clear and present danger’’ to the administration of justice. Id., 261–262, 273. Specifically, the court

analyzed ‘‘the particular utterances . . . in question

and the circumstances of their publication to determine

to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether

the degree of likelihood was sufficient to justify summary punishment.’’ Id., 271. The court reversed the contempt finding because it concluded that a threat to call

an impending strike, which the court observed was a

legal course of action,17 had not interfered with the

administration of justice. Id., 277–78.

Subsequently, in Craig v. Harney, 331 U.S. 367, 368,

375–78, 67 S. Ct. 1249, 91 L. Ed. 1546 (1947), the court

applied Bridges to a contempt finding imposed for news

articles that criticized a judge’s ruling and discussed

the community’s response. Illuminating further clear

and present danger, the court explained: ‘‘The vehemence of the language used is not alone the measure

of the power to punish for contempt. The fires which

it kindles must constitute an imminent, not merely a

likely, threat to the administration of justice. The danger

must not be remote or even probable; it must immediately imperil.’’ (Emphasis added.) Id., 376. In Craig,

the court deemed speech critical of an elected judge

‘‘appropriate, if not necessary.’’ Id., 377. Because ‘‘there

was . . . no threat or menace to the integrity of the

trial’’; id.; the court held that the speech was protected.

Id., 378.

The Supreme Court again considered the applicability

of Bridges in Wood v. Georgia, 370 U.S. 375, 82 S. Ct.

1364, 8 L. Ed. 2d 569 (1962). In Wood, a state court

judge convened a grand jury to investigate election law

violations, and a local sheriff published a written statement outside of court criticizing the judge and the inves-

APP.13

tigation, which was made available to the grand jury.

Id., 376–80, 393. As a result, the state judge held the

sheriff in contempt. Id., 380. The Supreme Court concluded that, ‘‘in the absence of some other showing of

a substantive evil actually designed to impede the

course of justice in justification of the exercise of the

contempt power to silence the [sheriff], his utterances

are entitled to be protected.’’ Id., 389. The court emphasized that Wood did not involve a trial or a ‘‘judicial

proceeding pending’’ in which such speech could result

in prejudice to the other side. (Internal quotation marks

omitted.) Id. The court reversed the state court’s order

of contempt because the sheriff’s speech did not pose

a clear and present danger to the administration of

justice in the absence of evidence of ‘‘actual interference’’18 with the grand jury investigation. Id., 393, 395.

But, as first amendment case law has progressed,

the clear and present danger standard articulated in

Bridges has been subject to criticism. For example,

Justice William O. Douglas excoriated the use of clear

and present danger in his concurrence in Brandenburg

v. Ohio, 395 U.S. 444, 452–54, 89 S. Ct. 1827, 23 L. Ed.

2d 430 (1969). See also, e.g., T. Emerson, ‘‘Toward a

General Theory of the First Amendment,’’ 72 Yale L.J.

877, 912 (1963) (‘‘There is still some blood remaining

in the doctrine, and it has continued to be used in

certain types of situations. But, as a general test of the

limits of the first amendment, [clear and present danger]

must be regarded as unacceptable.’’ (Footnote omitted.)). One major criticism is the ease with which the

test may be manipulated to include protected speech.

See Brandenburg v. Ohio, supra, 454 (Douglas, J., concurring) (‘‘When one reads the opinions closely and

sees when and how the ‘clear and present danger’ test

has been applied, great misgivings are aroused. . . .

[T]he threats were often loud but always puny and made

serious only by judges so wedded to the status quo that

critical analysis made them nervous.’’); L. Kendrick,

‘‘On ‘Clear and Present Danger,’ ’’ 94 Notre Dame L.

Rev. 1653, 1660 (2019) (explaining that clear and present

danger ‘‘has been criticized time and again for depending

too much on circumstances and thereby giving judges

too much discretion and failing to give speakers proper

notice of the legality of their activities’’ (footnotes omitted)).

Although the United States Supreme Court has not

directly rejected clear and present danger, the court

has alluded to its evolution as a first amendment doctrine. For example, Justice David Souter, in his concurrence in Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications

Commission, 518 U.S. 727, 778, 116 S. Ct. 2374, 135 L.

Ed. 2d 888 (1996), argued that clear and present danger

has evolved into the incitement test from Brandenburg,

under which ‘‘constitutional guarantees of free speech

and free press do not permit a [s]tate to forbid or pro-

APP.14

scribe advocacy of the use of force or of law violation

except where such advocacy is directed to inciting or

producing imminent lawless action and is likely to incite

or produce such action.’’ Brandenburg v. Ohio, supra,

395 U.S. 447. The United States Supreme Court also

alluded to this divergence in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S. Ct. 1535, 56 L.

Ed. 2d 1 (1978), stating: ‘‘The Supreme Court of Virginia

relied on the [clear and present danger] test . . . . We

question the relevance of that standard here; moreover

we cannot accept the mechanical application of the test

which led that court to its conclusion. [The] test was

never intended ‘to express a technical legal doctrine or

to convey a formula for adjudicating cases.’ ’’ Id., 842.

Nevertheless, the court went on to apply the test and

hold that a newspaper article that disclosed confidential

information did not meet the test. Id., 844–45.

More recently, the United States Supreme Court considered a similar issue to that presented in this case in

the context of attorney speech. See generally Gentile

v. State Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720,

115 L. Ed. 2d 888 (1991). In Gentile, the court concluded

that a ‘‘substantial likelihood of material prejudice’’

standard was a constitutionally permissible standard to

limit extrajudicial attorney speech. (Internal quotation

marks omitted.) Id., 1075. In the absence of an express

indication from the Supreme Court that a lower standard is permissible, we decline to extend the court’s

holding in Gentile to nonattorneys. This is because the

court supported its reasoning by relying on the special

status of attorneys, demonstrated through the government’s role in attorney regulation and rules already in

existence restricting attorney speech. See id., 1066–74.

The court specifically declined to state which standard

would apply to the speech of nonattorneys. See id.,

1072–73 n.5 (noting that rule being interpreted did not

apply to nonattorneys or attorneys outside of pending case).

Courts after Gentile have continued to apply clear

and present danger to extrajudicial speech in certain

circumstances. See, e.g., In re Kendall, 712 F.3d 814,

826 (3d Cir. 2013) (applying clear and present danger

when analyzing whether judge was improperly held in

criminal contempt for speech contained in judicial opinion); Standing Committee on Discipline v. Yagman,

55 F.3d 1430, 1443 (9th Cir. 1995) (applying clear and

present danger to attorney speech outside of pending

judicial proceeding); United States v. Bingham, 769 F.

Supp. 1039, 1045 (N.D. Ill. 1991) (concluding that

defense counsel’s speech in televised interview on eve

of jury selection constituted clear and present danger).

For example, the court in In re White, Docket No.

2:07CV342, 2013 WL 5295652, *24–26, *68 (E.D. Va. September 13, 2013), considered whether sanctions for

attorney’s fees should enter as a result of a nonparty’s

allegedly threatening speech. The court analyzed this

APP.15

request for sanctions in light of different first amendment tests, including clear and present danger.19 See

id., *70 (‘‘[a]lthough there is some indication that Brandenburg’s more stringent standard—incitement to

imminent lawlessness—has displaced the ‘clear and

present danger’ test articulated in . . . earlier cases,

the [c]ourt observes that some post-Brandenburg cases

continue to apply the ‘clear and present danger’ test to

court restrictions of speech threatening the due and

orderly administration of justice’’ (footnote omitted)).

The court determined that there was ‘‘no indication’’

that White’s online statements had ‘‘disrupted or interfered with a [c]ourt proceeding, [or] that his commentary was imminently likely to so interfere,’’ and, as such,

his speech did not pose ‘‘a serious and imminent threat

to the administration of justice.’’ (Emphasis omitted;

internal quotation marks omitted.) Id. This lack of clarity surrounding clear and present danger, as noted in

In re White, similarly leaves open the question of what

standard applies to the speech of parties to the litigation. See Wilson v. Moore, 193 F. Supp. 2d 1290, 1293

(S.D. Fla. 2002) (applying clear and present danger to

speech of criminal defendant made during appeal

process).

‘‘The [United States] Supreme Court has held that

speech otherwise entitled to full constitutional protection may nonetheless be sanctioned if it obstructs or

prejudices the administration of justice.’’ Standing

Committee on Discipline v. Yagman, supra, 55 F.3d

1442, citing Gentile v. State Bar of Nevada, supra, 501

U.S. 1074–75, and Sheppard v. Maxwell, 384 U.S. 333,

363, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). Importantly,

‘‘[a] rule governing speech, even speech entitled to full

constitutional protection, need not use the words ‘clear

and present danger’ in order to pass constitutional muster.’’ Gentile v. State Bar of Nevada, supra, 1036 (Kennedy, J.). Because the Supreme Court has not yet clearly

supplanted clear and present danger in the area of extrajudicial speech, we will use it as a guideline in our

analysis. Even still, it is necessary to refine the standard

to our present circumstances to incorporate the requirements of Brandenburg and the inquiries outlined in

Gentile. ‘‘Properly applied, the test requires a court to

make its own inquiry into the imminence and magnitude

of the danger said to flow from the particular utterance

and then to balance the character of the evil, as well

as its likelihood, against the need for free and unfettered

expression.’’ Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 842–43; see also Turney v. Pugh,

400 F.3d 1197, 1202 (9th Cir. 2005). We conclude that,

if extrajudicial speech by a party to litigation poses

an imminent and likely threat to the administration of

judicial proceedings at issue, a court may sanction a

party for that speech.

It is necessary to outline certain factors that affect

whether extrajudicial speech threatens the administra-

APP.16

tion of justice. ‘‘The [United States Supreme] Court gave

two principal reasons for adopting this lower threshold

[in Gentile], one concerned with the identity of the

speaker, the other with the timing of the speech.’’ Standing Committee on Discipline v. Yagman, supra, 55 F.3d

1442; see In re Hinds, 90 N.J. 604, 609, 449 A.2d 483

(1982) (in using reasonable likelihood standard, ‘‘the

determination of whether a particular statement is

likely to interfere with a fair trial involves a careful

balancing of factors, including consideration of the status of the attorney, the nature and timing of the statement, as well as the context in which it was uttered’’);

see also In re Hinds, supra, 622–23. As a result, we,

too, will consider such factors.

If the speaker is a party to litigation, the government’s

interest in ensuring the fair administration of justice is

heightened, especially if the trial involves a criminal

defendant. See Chicago Council of Lawyers v. Bauer,

522 F.2d 242, 248 (7th Cir. 1975) (‘‘[t]hat courts have

the duty to ensure fair trials—‘the most fundamental of

all freedoms’—is beyond question’’ (footnote omitted)),

cert. denied sub nom. Cunningham v. Chicago Council

of Lawyers, 427 U.S. 912, 96 S. Ct. 3201, 49 L. Ed. 2d

1204 (1976); id., 257–58 (‘‘we require even a greater

insularity against the possibility of interference with

fairness in criminal cases’’). Judicial restrictions on a

litigant’s speech are more permissible than judicial

restrictions on comments made by an outsider to the

litigation, such as the press. See In re Application of

Dow Jones & Co., 842 F.2d 603, 608 (2d Cir.) (‘‘there

is a substantial difference between a restraining order

directed against the press—a form of censorship which

the [f]irst [a]mendment sought to abolish from these

shores—and the order here directed solely against trial

participants’’), cert. denied sub nom. Dow Jones & Co.

v. Simon, 488 U.S. 946, 109 S. Ct. 377, 102 L. Ed. 2d

365 (1988); see also Standing Committee on Discipline

v. Yagman, supra, 55 F.3d 1443 (‘‘[w]hen lawyers speak

out on matters unconnected to a pending case, there

is no direct and immediate impact on the fair trial rights

of litigants’’ (emphasis added)).

Relying in part on the distinction made in Gentile

between trial participants and those outside the litigation, the Fifth Circuit declined to apply the stringent

clear and present danger standard to a trial participant

gag order. United States v. Brown, 218 F.3d 415, 426–27

(5th Cir. 2000), cert. denied, 531 U.S. 1111, 121 S. Ct.

854, 148 L. Ed. 2d 769 (2001). In Brown, the court

decided that the lower standard in Gentile may be

extended to nonattorney litigation participants, as there

was ‘‘no reason . . . to distinguish between [attorneys

and parties] for the purpose of evaluating a gag order

directed at them both.’’ Id., 428; see also State v. Carruthers, 35 S.W.3d 516, 562–63 (Tenn. 2000) (declining

to apply clear and present danger to trial participants),

cert. denied, 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed.

APP.17

2d 757 (2001). We decline to completely extend the

reasoning in Brown to this case and instead invoke a

higher standard reminiscent of clear and present danger

that takes into account the speaker’s identity. See Commission for Lawyer Discipline v. Benton, 980 S.W.2d

425, 431 (Tex. 1998) (describing ‘‘the Gentile standard

[as] a constitutional minimum’’), cert. denied, 526 U.S.

1146, 119 S. Ct. 2021, 143 L. Ed. 2d 1033 (1999). We

recognize that Jones’ position, as a civil defendant, presents a different situation than a plaintiff, who affirmatively requests a court’s jurisdiction over her case. See

United States v. Carmichael, 326 F. Supp. 2d 1267, 1294

(M.D. Ala. 2004) (declining to apply lower standard in

Gentile to criminal defendant). Accordingly, we afford

Jones the benefit of the doubt and engage in the most

rigorous and searching review of any infringement of

his first amendment rights.

Courts must have the ability to restrict the rights

of participants to the extent necessary to protect the

fairness of the litigation. ‘‘Although litigants do not surrender their [f]irst [a]mendment rights at the courthouse door . . . those rights may be subordinated to

other interests that arise in this setting. For instance,

on several occasions [the] [c]ourt has approved restriction on the communications of trial participants where

necessary to ensure a fair trial for a criminal defendant.

. . . In the conduct of a case, a court often finds it

necessary to restrict the free expression of participants,

including counsel, witnesses, and jurors.’’ (Citations

omitted; internal quotation marks omitted.) Seattle

Times Co. v. Rhinehart, 467 U.S. 20, 32–33 n.18, 104 S.

Ct. 2199, 81 L. Ed. 2d 17 (1984). ‘‘Neither prosecutors,

counsel for defense, the accused, witnesses, court staff

nor enforcement officers coming under the jurisdiction

of the court should be permitted to frustrate its function.’’ (Internal quotation marks omitted.) Gentile v.

State Bar of Nevada, supra, 501 U.S. 1072. ‘‘[The United

States Supreme Court] expressly contemplated that the

speech of those participating before the courts could

be limited. This distinction between participants in the

litigation and strangers to it is brought into sharp relief

by [the] holding in Seattle Times Co. v. Rhinehart,

[supra, 20].’’ (Emphasis omitted; footnote omitted.)

Gentile v. State Bar of Nevada, supra, 1072–73. ‘‘The

primary danger of extrajudicial speech to the administration of justice must be that the outcome of a judicial

proceeding, or the ability of the court to do its work,

might be improperly influenced by people who have no

legitimate part in the courts’ resolution of that matter.

Of course, the person making an extrajudicial statement

might actually be a party in an ongoing proceeding. Or,

an out-of-court statement might not affect any pending

matter, but might influence the course of some future

proceeding. The point is that an attempt to interfere

with the outcome of a case is properly punishable

because justice is being affected through means other

APP.18

than those established for the proper disposition of a

controversy.’’ L. Raveson, ‘‘Advocacy and Contempt:

Constitutional Limitations on the Judicial Contempt

Power; Part One: The Conflict Between Advocacy and

Contempt,’’ 65 Wash. L. Rev. 477, 499–500 (1990).

A related, but necessary inquiry, considers the timing

and the nature of the speech. Speech is more likely

to interfere with the administration of justice if it is

calculated to intimidate or threaten other participants

in the litigation. ‘‘It is without question that courts

may sanction parties and their attorneys who engage

in harassment of their opponents. . . . The [f]irst

[a]mendment does not shield improper tactics used by

litigants to advance their interests, even if those tactics

involve communication of a message.’’ (Citation omitted.) B. Willis, C.P.A., Inc. v. Goodpaster, 183 F.3d

1231, 1234 (10th Cir.), cert. denied sub nom. Willis v.

Goodpaster, 528 U.S. 1046, 120 S. Ct. 581, 145 L. Ed. 2d

483 (1999); see D’Agostino v. Lynch, 382 Ill. App. 3d

960, 970, 887 N.E.2d 590 (‘‘harassing the court and the

litigants appearing before it’’ was ‘‘calculated to disrupt

court proceedings and bring the administration of law

into disrepute’’), appeal denied, 229 Ill. 2d 619, 897

N.E.2d 250 (2008); Fidelity National Title Ins. Co. of

New York v. Intercounty National Title Ins. Co., supra,

2002 WL 1433717, *11 (‘‘A party’s use of anonymous

letters to opposing counsel to sabotage the litigation is

an abuse of the judicial process. Anonymous, threatening letters prevent a speedy, open, and just resolution

of the dispute on its merits.’’).

Additionally, ‘‘[t]he possibility that other measures

will serve the [s]tate’s interests should also be weighed.’’

Landmark Communications, Inc. v. Virginia, supra,

435 U.S. 843. We also consider whether the sanction is

narrowly tailored to achieve the government’s substantial interest in ensuring the administration of justice.

Gentile v. State Bar of Nevada, supra, 501 U.S. 1075.

Our analysis also is informed by several cases from

our sister states’ appellate courts applying clear and

present danger to uphold contempt findings arising

from statements by litigants.20 In one recent decision,

the Georgia Court of Appeals upheld the contempt conviction of a witness who, while at the courthouse as a

character witness in his son’s criminal trial, insulted

the minor victim’s mother in the hallway outside the

courtroom and ‘‘exclaim[ed] that he hoped God would

make the children and grandchildren of those who lied

about his son suffer in the same way his son was currently suffering.’’ See Moton v. State, 332 Ga. App. 300,

300–301, 772 S.E.2d 393 (2015). An Illinois appeals court

upheld a contempt conviction after the contemnor filed

a motion alleging, inter alia, that the opposing parties

and their attorney were part of the Mafia and had bribed

the presiding judge. See D’Agostino v. Lynch, supra,

382 Ill. App. 3d 961. In that case, the court stated that

APP.19

‘‘[c]omments that are systematically designed to thwart

the judicial process constitute a ‘clear and present danger’ to the administration of justice’’ and concluded that

the ‘‘unsubstantiated accusations’’ against the judge

qualified. Id., 970–72; see also People v. Goss, 10 Ill. 2d

533, 536–37, 141 N.E.2d 385 (1957) (upholding contempt

order under clear and present danger when nonparty

appeared on television show and accused party to court

proceeding of being from ‘‘a family with [court admitted] hoodlum connections’’ and called witness ‘‘professional sneak and liar’’ (internal quotation marks

omitted)).

In establishing the constitutional bounds of the

court’s authority, we also find instructive those cases

concluding that the litigant’s conduct did not present

a clear and present danger to the administration of

justice. See Pennekamp v. Florida, 328 U.S. 331, 336–39,

348, 66 S. Ct. 1029, 90 L. Ed. 1295 (1946) (publishers of

editorials and cartoon critical of judges did not pose

clear and present danger); Garland v. State, 253 Ga.

789, 789, 791, 325 S.E.2d 131 (1985) (reversing contempt

conviction of attorney whose remarks criticizing judge

for violating judicial ethics and conducting ‘‘sham proceeding’’ were published in newspaper (internal quotation marks omitted)); Worcester Telegram & Gazette,

Inc. v. Commonwealth, 354 Mass. 578, 579–83, 238

N.E.2d 861 (1968) (reversing contempt convictions of

publisher and reporter, whose newspaper article

inferred that defendant in pending criminal proceeding

previously had been ‘‘convicted of a serious crime’’

leading to mistrial, because they did not purposefully

try to affect trial’s outcome); In re Contempt of Dudzinski, 257 Mich. App. 96, 106–107, 667 N.W.2d 68

(reversing contempt conviction of appellant who had

worn ‘‘Kourts Kops Krooks’’ shirt in courtroom while

quietly observing proceedings (internal quotation

marks omitted)), appeal denied, 469 Mich. 988, 673

N.W.2d 756 (2003); Smith v. Pace, 313 S.W.3d 124, 126–

27, 137 (Mo. 2010) (concluding that there was no interference or imminent threat of interference with administration of justice when lawyer defendant used ‘‘strong

words . . . in petitioning the court . . . for a writ

seeking to quash a subpoena’’ and therein accused judge

and prosecutor of ‘‘misconduct’’ and ‘‘impropriety’’

(internal quotation marks omitted)). These cases demonstrate the types of speech that are protected and

stand in stark contrast to Jones’ speech in this case.

In applying this precedent to the speech at issue in

the present case, we first observe that the trial court

did not expressly consider whether the speech posed

an imminent and likely threat to the administration of

justice in ruling on the motions for sanctions.21 The trial

court instead found its authority to sanction under the

court’s inherent authority ‘‘to address out-of-court, bad

faith litigation misconduct where there is a claim that

a party harassed or threatened or sought to intimidate

APP.20

counsel on the other side’’ and noted its ‘‘obligation to

ensure the integrity of the judicial process and [the]

functioning of the court.’’ Nevertheless, the findings

that led the trial court to sanction the defendants are

consistent with our aforementioned standard. Specifically, the trial court found that, on the June 14, 2019

broadcast, Jones (1) accused opposing counsel of a

felony (‘‘planting child pornography’’), (2) used threatening language toward opposing counsel through violent rhetoric, and (3) harassed and intimidated opposing

counsel, calling him ‘‘a bitch, a sweet little cupcake, a

sack of filth,’’ and declaring war on him. It is obvious

that the central reason why Jones’ speech was censured

and why it ultimately could pose a threat to the administration of justice is its genuine potential to influence

the fairness of the proceedings. Specifically, Jones’

broadcast produced additional threats to those involved

in the case and created a hostile atmosphere that could

discourage individuals from participating in the litigation.

Balancing the risk of fairness to the proceedings with

‘‘the need for free and unfettered expression,’’ as

required by Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 843, does not render Jones’

speech immune to sanctions under the first amendment,

and we reject the defendants’ assertion that ‘‘there is

no barrier to a litigant, especially a litigant who is a

broadcaster, speaking freely about pending litigation.

[Jones’] decision to air his grievances over the airwaves

and online is hardly remarkable. These media constitute

the new public square.’’ Although we recognize and

reaffirm the importance of robust public comment

about the court system and the judicial process, and

acknowledge that, outside of litigation, Jones’ speech

may be protected,22 the trial court’s duty to ensure a

fair trial for those appearing before it permits some

restrictions on harassing and threatening speech

toward participants in the litigation. Without the ability

to place such restrictions, trial courts will be left

defenseless to stop both actual interference and perceived threats to just adjudications. ‘‘ ‘Freedom of discussion should be given the widest range compatible

with the essential requirement of the fair and orderly

administration of justice.’ Pennekamp v. Florida,

[supra, 328 U.S. 347]. But it must not be allowed to

divert the trial from the ‘very purpose of a court system

. . . to adjudicate controversies, both criminal and

civil, in the calmness and solemnity of the courtroom

according to legal procedures.’ ’’ Sheppard v. Maxwell,

supra, 384 U.S. 350–51.

Regardless of whether enforcement comes in the

form of civil or criminal penalties, speech that interferes

with the administration of justice cannot be tolerated.

In State v. Taupier, 330 Conn. 149, 193 A.3d 1 (2018),

cert. denied,

U.S.

, 139 S. Ct. 1188, 203 L. Ed.

2d 202 (2019), this court considered a first amendment

APP.21

challenge to a defendant’s conviction of threatening in

the first degree for an e-mail communication concerning

a Superior Court judge. Id., 153–54. In that case, the

defendant had ‘‘made it clear that he was extremely

angry at the ‘court,’ over which [the judge] had presided,

that he had discovered where [the judge] lived, that

he had surveilled [the judge’s] residence, that he had

thought through a very detailed and specific way to kill

[the judge] at that location, and that he had anticipated

being punished for his conduct.’’ Id., 191. The court

concluded that the speech was a true threat and, therefore, was unprotected. Id., 199. This conclusion was,

in part, implicitly supported by the effect such speech

had on the administration of justice, i.e., threatening

violence against the judge presiding over the defendant’s family court proceedings. See id., 184 (pointing to

judge’s reaction, defendant’s history with family court

system, and defendant and judge’s past history as evidence supporting conviction). Such a threat, at the very

least, could require the judge to recuse herself from

the defendant’s cases and, as such, interferes with a

fair adjudication.

There are two important distinctions between Bridges and its progeny, on the one hand, and the present

case, on the other, that lead us to conclude that Jones’

broadcast posed an imminent and likely threat to the

administration of justice. The first is Jones’ role as a

party in the litigation and the second is the unmistakably

threatening and vituperative nature of the speech at

issue. Both of these factors influence the imminence

and likelihood of the threatened harm. In both Wood

and Bridges, the statements were made by nonparties

criticizing judicial action. In the present case, Jones is

a party commenting on his own litigation and, therefore,

has a greater opportunity and perceived incentive to

affect the outcome of the case.23 As a party to a judicial

proceeding, Jones is participating in a government function and therefore is under the court’s jurisdiction. For

this reason, the trial court may sanction him for speech

that, when made by a stranger to the litigation, may

be acceptable.24

The second difference between the present case and

Bridges and Woods is the nature of the intimidating and

threatening speech, which demonstrates the coercive

influence that might reasonably be expected as a result

of Jones’ broadcast. ‘‘Since we are committed to a government of laws and not of men, it is of the utmost

importance that the administration of justice be absolutely fair and orderly. [The United States Supreme

Court] has recognized that the unhindered and untrammeled functioning of our courts is part of the very

foundation of our constitutional democracy.’’ Cox v.

Louisiana, 379 U.S. 559, 562, 85 S. Ct. 476, 13 L. Ed.

2d 487 (1965). ‘‘Courts must have [the] power to protect

the interests of . . . litigants before them from

unseemly efforts to pervert judicial action.’’ Pennekamp

APP.22

v. Florida, supra, 328 U.S. 347. The record in this case

reflects additional threats targeting those involved in

the case in connection with Jones’ speech.25 In an order

dated June 21, 2019, the trial court stated: ‘‘In the interest of full disclosure to all parties, the court was contacted by the Connecticut State Police, [which was]

reportedly contacted by the FBI regarding threats

against the undersigned [judge] made by individuals on

the . . . Infowars website.’’26 In addition, the plaintiffs’

counsel also represented to the trial court that, as a

result of the broadcast, they had ‘‘since received threats

from the outside’’ and even obtained police protection

when attending the court hearing after the broadcast.

We take seriously these statements on the record

because ‘‘[i]t long has been the practice that a trial court

may rely [on] certain representations made to it by

attorneys, who are officers of the court and bound to

make truthful statements of fact or law to the court.’’

(Internal quotation marks omitted.) State v. Chambers,

296 Conn. 397, 419, 994 A.2d 1248 (2010).

Jones’ speech further was calculated to interfere with

the fairness of the proceedings as it directly targeted

opposing counsel, accusing him of felonious behavior

and threatening him, and reasonably can be expected

to influence how the plaintiffs litigate their case.27 On

the broadcast, Jones declared war on those who planted

the child pornography, implicated the plaintiffs’ counsel, and promoted a million dollar bounty. Jones stated:

‘‘You’re trying to set me up with child porn. I’m going

to get your ass. One million dollars. One million dollars,

you little gang members. One million dollars to put your

head on a pike. One million dollars, bitch. I’m going to

get your ass.’’ A party who places a one million dollar

bounty on the head of opposing counsel, whether literally or figuratively in the form of his conviction, undeniably interferes with the proceedings. This speech

clearly ‘‘ ‘is directed to inciting or producing’ a threat

to the administration of justice that is both ‘imminent’

and ‘likely’ to materialize.’’ Turney v. Pugh, supra, 400

F.3d 1202. Harassing and intimidating counsel so that

they withdraw from litigating a case is beyond cavil; it

is an unfair and inappropriate litigation strategy that

strikes at the core of our system.28 See Harry v. Lagomarsine, Docket No. 18-CV-1822 (BMC) (LB), 2019 WL

1177718, *3 (E.D.N.Y. March 13, 2019) (explaining how

threats to opposing counsel ‘‘effected a permanent

change in [the] defendants’ representation’’); Kalwasinski v. Ryan, supra, 2007 WL 2743434, *3 (‘‘[b]y deliberately and intentionally participating in making threats

of physical harm against parties and witnesses in his

case, he has engaged in conduct that he should have

known would threaten a fair decision in this matter’’).

We recognize that there is a place for strong advocacy

in litigation, but language evoking threats of physical

harm is not tolerable. In light of these reasons, we

conclude that Jones’ speech could pose a threat to the

APP.23

plaintiffs’ ability to litigate their case, rendering it an

imminent and likely threat to the administration of

justice.

Finally, we consider whether the state’s interests may

be served in another manner and whether the sanctions

imposed are narrowly tailored to the state’s interest in

ensuring fair judicial proceedings. See, e.g., Gentile v.

State Bar of Nevada, supra, 501 U.S. 1076; Landmark

Communications, Inc. v. Virginia, supra, 435 U.S. 843.

The trial court penalized the defendants in a restrained

manner in order to preserve the judicial process. In this

case, the trial court might have issued a gag order,

but such a measure could improperly penalize future

speech in the form of a prior restraint. See, e.g., Kemner

v. Monsanto Co., 112 Ill. 2d 223, 249–50, 492 N.E.2d

1327 (1986) (noting that there are less restrictive means

than a gag order ‘‘to preserve the integrity of the proceedings before it,’’ such as contempt). Instead, the

court appropriately dealt with two issues in a proportional sanction that was more measured than the individual punishments of civil or criminal contempt that

have been upheld as a consequence for similar conduct.

Indeed, the court refrained from imposing the more

severe sanction requested by the plaintiffs, specifically,

defaulting the defendant. The court selected a lower

penalty, namely, the revocation of special statutory benefit, because the defendants abused the process set

out in the statute through their discovery practices.

Accordingly, we conclude that the trial court did not

violate the first amendment when it imposed sanctions

on the basis of Jones’ broadcast, which presented an

imminent and likely threat to the administration of

justice.29

B

We next consider whether the trial court abused its

discretion by sanctioning the defendants for their discovery abuses and Jones’ broadcast. A trial court’s

power to sanction a litigant or counsel stems from two

different sources of authority, its inherent powers and

the rules of practice. Millbrook Owners Assn., Inc. v.

Hamilton Standard, 257 Conn. 1, 9–10, 776 A.2d 1115

(2001) (‘‘One source of the trial court’s authority to

impose sanctions is the court’s inherent power. . . .

In addition, our rules of practice, adopted by the judges

of the Superior Court in the exercise of their inherent

rule-making authority . . . also [provide] for specific

instances in which a trial court may impose sanctions.’’

(Citations omitted; footnote omitted.)); see Chambers

v. NASCO, Inc., supra, 501 U.S. 50–51 (discussing relationship between sanctions under Federal Rules of Civil

Procedure and court’s inherent power). As discussed

previously, this inherent authority permits sanctions for

‘‘dilatory, bad faith and harassing litigation conduct

. . . .’’ (Internal quotation marks omitted.) CFM of

Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 393.

APP.24

Additionally, under Practice Book § 13-14, a court may

sanction a party for noncompliance with the court’s discovery orders. Among the permissible sanctions is foreclosing judgment on the merits for a party, such as by

rendering a default judgment against a defendant or by

dismissing a plaintiff’s case. See Practice Book § 13-14

(b). The anti-SLAPP statute does not limit the court’s

authority to impose sanctions. See General Statutes

§ 52-196a (h) (2).

In reviewing the portion of the sanctions based on

the violation of discovery orders, we consider three

factors. ‘‘First, the order to be complied with must be

reasonably clear. In this connection, however, we also

state that even an order that does not meet this standard

may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the

party sanctioned in fact understood the trial court’s

intended meaning. This requirement poses a legal question that we will review de novo. Second, the record

must establish that the order was in fact violated. This

requirement poses a question of fact that we will review

using a clearly erroneous standard of review. Third, the

sanction imposed must be proportional to the violation.

This requirement poses a question of the discretion of

the trial court that we will review for abuse of that

discretion.’’ Millbrook Owners Assn., Inc. v. Hamilton

Standard, supra, 257 Conn. 17–18. ‘‘The determinative

question for an appellate court is not whether it would

have imposed a similar sanction but whether the trial

court could reasonably conclude as it did given the

facts presented. Never will the case on appeal look as

it does to a [trial court] . . . faced with the need to

impose reasonable bounds and order on discovery.’’

(Internal quotation marks omitted.) Usowski v. Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003). ‘‘Trial court

judges face great difficulties in controlling discovery

procedures which all too often are abused by one side

or the other and this court should support the trial

judges’ reasonable use of sanctions to control discovery.’’ (Internal quotation marks omitted.) Mulrooney v.

Wambolt, 215 Conn. 211, 223, 575 A.2d 996 (1990).

In its oral decision granting the motions for sanctions,

the trial court observed that ‘‘the discovery in this case

has been marked with obfuscation and delay on the

part of the defendants . . . .’’ The court cited two specific examples of discovery noncompliance: (1) the

defendants failed to produce adequate Google Analytics

information with respect to marketing data and to conduct a complete search of Jones’ cell phone, and (2)

the defendants ‘‘disregarded’’ discovery deadlines on

multiple occasions, ‘‘continue[d] to object to . . . discovery, and failed to produce that which is within their

knowledge, possession, or power to obtain.’’

It is undisputed that the trial court’s discovery orders

were reasonably clear and that the defendants violated

APP.25

four of them.30 The defendants do not raise distinct

arguments under the first two prongs of Millbrook Owner’s Assn., Inc., but, instead, largely challenge the

‘‘harshness’’ of the sanctions imposed. In considering

whether the sanction revoking the defendants’ opportunity to pursue the special motions to dismiss was proportional to the defendants’ discovery violations, we

are guided by ‘‘the factors we previously have employed

when reviewing the reasonableness of a trial court’s

imposition of sanctions: (1) the cause of the [party’s]

failure to respond to the posed questions, that is,

whether it is due to inability rather than the [wilfulness],

bad faith or fault of the [party] . . . (2) the degree of

prejudice suffered by the opposing party, which in turn

may depend on the importance of the information

requested to that party’s case; and (3) which of the

available sanctions would, under the particular circumstances, be an appropriate response to the disobedient

party’s conduct.’’ (Internal quotation marks omitted.)

Yeager v. Alvarez, 302 Conn. 772, 787, 31 A.3d 794

(2011). We also consider how Jones’ broadcast

impacted the trial court’s decision sanctioning the

defendants for bad faith litigation practices. See MacCalla v. American Medical Response of Connecticut,

Inc., 188 Conn. App. 228, 230, 239, 204 A.3d 753 (2019)

(upholding sanction of dismissal on basis of plaintiffs’

noncompliance with discovery orders and ‘‘the unprofessional and dilatory conduct of the plaintiffs’ counsel,’’ who called ‘‘a party’s corporate representative

[who was] attending a deposition a trespasser,’’ and

holding that this conduct ‘‘evinces a disregard for the

provisions of the Practice Book and the authority of

the court’’).

The plaintiffs argue that the sanctions are proportional because the defendants’ violations were ‘‘deliberate,’’ ‘‘wilful,’’ and in ‘‘bad faith . . . .’’ The defendants

counter that their actions were not taken in bad faith.

‘‘[I]n assessing proportionality, a trial court must consider the totality of the circumstances, including, most

importantly, the nature of the conduct itself.’’ Ridgaway

v. Mount Vernon Fire Ins. Co., 328 Conn. 60, 76, 176

A.3d 1167 (2018); see also Millbrook Owners Assn., Inc.

v. Hamilton Standard, supra, 257 Conn. 16 (‘‘dismissal

of an action is not an abuse of discretion where a party

shows a deliberate, contumacious or unwarranted disregard for the court’s authority’’ (internal quotation

marks omitted)). In the present case, the trial court did

not expressly find that the defendants’ discovery abuses

were performed in bad faith but, in its oral decision,

pointedly characterized their actions as being marked

by a pattern of ‘‘obfuscation and delay . . . .’’ Additionally, the record supports the trial court’s finding that

the defendants repeatedly ignored court deadlines and

continued to challenge the underlying merits of discovery, even after the court found the requisite good cause

to allow discovery under § 52-196a (d).31 See, e.g.,

APP.26

National Hockey League v. Metropolitan Hockey Club,

Inc., 427 U.S. 639, 643, 96 S. Ct. 2778, 49 L. Ed. 2d 747

(1976) (upholding dismissal of action in light of ‘‘[the]

respondents’ ‘flagrant bad faith’ and their counsel’s ‘callous disregard’ of their responsibilities’’ when respondents failed to answer written interrogatories by deadline). Accordingly, we conclude that the record

supports the trial court’s finding that the defendants

wilfully disregarded the court’s discovery orders.

This wilful disregard was exacerbated by Jones’ conduct during the June 14, 2019 broadcast. The trial court

found that Jones’ actions were ‘‘indefensible, unconscionable, despicable, and possibly criminal,’’ and that

the ‘‘deliberate tirade and harassment and intimidation

against Attorney Mattei and his firm [were] unacceptable and sanctionable.’’ Because Jones’ statements

were one part of a whole picture of bad faith litigation

misconduct, we conclude that the trial court’s reliance

on Jones’ speech as part of the rationale for the sanctions orders was appropriate in this context.

With respect to the defendants’ ability to comply with

discovery, one mitigating factor that potentially could

have explained the defendants’ noncompliance with the

discovery deadlines was their change in counsel midway through the discovery process. Although the parties disagree as to whether this change in counsel was

a ‘‘strategic’’ tactic, the record indicates that, even under

the defendants’ original counsel, the documents were

still far from ready for production.32 Moreover, the

record supports the trial court’s determination that the

change in counsel did not by itself affect the defendants’

ability to produce the discovery on time.33

Turning to the prejudice factor, we consider the

importance of the undisclosed discovery material, the

effect the information would have on the party

requesting it, and whether the information was available

through other means. Yeager v. Alvarez, supra, 302

Conn. 787–88; see id., 789–90 (defendants were not prejudiced by noncompliance when materials that they

sought had been indirectly included in plaintiffs’ production). In the present case, the record supports the

trial court’s implicit finding that the defendants’ noncompliance was prejudicial to the plaintiffs34 because,

each time the defendants did not comply with the court

ordered discovery, the plaintiffs were unable to access

information that could assist them in proving probable

cause that they would succeed on the merits of their

complaints. For example, access to the defendants’ marketing data would be relevant to proving a financial

connection between the defendants’ actions and the

statements made during the broadcast.35 See Krahel v.

Czoch, 186 Conn. App. 22, 35–36, 198 A.3d 103 (considering importance of unproduced discovery and its effect

on plaintiff’s case when analyzing prejudice), cert.

denied, 330 Conn. 958, 198 A.3d 584 (2018).

APP.27

Finally, we consider the proportionality of the specific sanction employed to the violations at issue. Here,

the trial court was not just considering one violation

of a court deadline but several, and, therefore, the

defendants’ noncompliance warranted an appropriate

sanction by that court. See Emerick v. Glastonbury,

177 Conn. App. 701, 736–37, 173 A.3d 701 (2017) (‘‘The

plaintiff’s conduct, considered in its entirety, satisfied

this standard. . . . The court’s repeated warnings, suggestions and fines had no impact on the plaintiff, as he

ignored the court’s admonitions and continued to delay

the trial.’’ (Citation omitted.)), cert. denied, 327 Conn.

994, 175 A.3d 1245 (2018). These violations, when considered together, reasonably could be found to make

up a pattern of wilfulness on the part of the defendants.

But cf. D’Ascanio v. Toyota Industries Corp., 309 Conn.

663, 681, 72 A.3d 1019 (2013) (reversing sanction of

dismissal because ‘‘the objectionable conduct at issue

was an isolated event and was not one in a series of

actions in disregard of the court’s authority’’); Usowski

v. Jacobson, supra, 267 Conn. 93 (trial court abused its

discretion in sanctioning party by dismissing action on

ground that ‘‘the record does not establish that the

failure to comply with the discovery orders constituted

a continuing pattern of violations’’ because ‘‘other factors of a mitigating nature also were present’’). The

trial court considered this wilfulness along with the

defendants’ harassing and intimidating speech toward

the plaintiffs’ counsel, which together created a whole

spectrum of bad faith litigation misconduct. ‘‘As is often

the case in life . . . the whole of abusive action is

greater than the sum of the parts of which it is made.

Were we to view judicial abuses piecemeal, each one

might not be worthy of sanctions, or even comment.

But these incremental abuses chip away at the fair

administration of justice . . . .’’ Fuery v. Chicago, 900

F.3d 450, 454 (7th Cir. 2018). ‘‘[I]t is the [trial] court

[that] can evaluate the whole ball of wax and determine

whether the small incremental blows to the integrity of

the trial add up to something that requires sanctioning.

Death by a thousand cuts is no less severe than death

by a single powerful blow.’’ Id., 464.

Although the sanctions imposed by the trial court

are not the sanctions enumerated within the rules of

practice, this does not mean they were disproportionate

or impermissible as a matter of law. For example, in

Yeager v. Alvarez, supra, 302 Conn. 772, we concluded

that a trial court had the authority to ‘‘strike an otherwise valid offer of compromise’’ as a sanction for a

discovery violation; id., 778; because it ‘‘falls well within

the ambit of judicial power contemplated by both the

court’s inherent authority and the rules of practice.

Significantly, [Practice Book § 13-14 (a)] authorizes a

trial court to penalize discovery violations by entering

orders ‘as the ends of justice require.’ In fact, § 13-14

(b) contains sanctions even more severe than those

APP.28

imposed in this matter. These severe sanctions, which

may strip a party of all prospect of prevailing, logically

encompass a host of lesser penalties. Such milder sanctions may include orders that reduce a party’s likelihood

of success at trial . . . .’’ Id., 781.

The sanctions imposed by the trial court in the present case revoked a statutory benefit, namely, the opportunity to pursue the special motions to dismiss under

§ 52-196a (d), which further penalized the defendants

by rescinding a stay of the full discovery process. Nonetheless, as the trial court found, this was a measured

sanction for the defendants’ noncompliance with limited discovery, which was an abuse of the very benefit

they sought to utilize. Moreover, the sanctions imposed

were well short of a default or dismissal, insofar as

they do not preclude the defendants from having the

merits of their cases adjudicated in a conventional manner, such as by summary judgment or trial. See Millbrook Owners Assn., Inc. v. Hamilton Standard, supra,

257 Conn. 16 (‘‘the court’s discretion should be exercised mindful of the ‘policy preference to bring about

a trial on the merits of a dispute whenever possible and

to secure for the litigant his day in court’ ’’); cf. Emerick

v. Glastonbury, supra, 177 Conn. App. 737 (upholding

sanction of dismissal when plaintiff engaged in ‘‘continuing and deliberate misconduct . . . [that] demonstrated . . . deliberate disregard for the court’s

orders’’).

In assessing the proportionality of the sanctions, we

next turn to the defendants’ central argument for excusing their noncompliance, namely, that the discovery in

this case was overbroad and that the sanctions, therefore, were not appropriate. According to the defendants, ‘‘[w]hen discovery is allowed under § 52-196a, it

is allowed as an exception to the statutory rule that

discovery is to be stayed pending a decision on the

special motion to dismiss, and—when allowed—it must

be specific and limited. But, without any clarity from

the court as to how the specific and limited discovery

should proceed, the plaintiffs exploited the untended

frontiers of the judge’s order until the specific and limited discovery ordered by the court was indistinguishable from the broad contours of general discovery in

all civil cases . . . .’’ (Emphasis omitted; footnote

omitted.)

First, notwithstanding the merits of the defendants’

breadth argument, the plaintiffs correctly point out that,

despite the defendants’ grievances with the scope of

discovery, the defendants are still required to comply

with the court’s orders. ‘‘[A] party has a duty to obey

a court order even if the order is later held to have been

unwarranted.’’ Tomasso Bros., Inc. v. October TwentyFour, Inc., 230 Conn. 641, 658 n.20, 646 A.2d 133 (1994);

see also Mulholland v. Mulholland, 229 Conn. 643, 649,

643 A.2d 246 (1994). ‘‘An order of the court must be

APP.29

obeyed until it has been modified or successfully challenged, and the consequences for noncompliance may

be severe indeed.’’ Fox v. First Bank, 198 Conn. 34, 40

n.3, 501 A.2d 747 (1985).

Second, nothing in the anti-SLAPP statute limits the

trial court’s discretion to order ‘‘specified and limited

discovery relevant to the special motion to dismiss’’

beyond the ‘‘good cause’’ standard set forth in § 52-196a

(d).36 We will not fill this legislative silence by imposing

broad restrictions on the trial court’s discretion to determine good cause, insofar as each case will present different claims and defenses bearing on whether limited

discovery should be granted. Cf. Standard Tallow Corp.

v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983) (‘‘[t]he

granting or denial of a discovery request rests in the

sound discretion of the court’’); Coss v. Steward, 126

Conn. App. 30, 46–47, 10 A.3d 539 (2011) (discussing

good cause requirement for protective orders and trial

court’s discretion in granting them). We conclude,

therefore, that the defendants’ claims that discovery

was improvidently granted under the anti-SLAPP statute does not excuse their failure to comply with the

trial court’s orders. Accordingly, the trial court did not

abuse its discretion in sanctioning the defendants for

discovery violations and Jones’ June 14, 2019 broadcast.

II

The final issue in this appeal is whether the defendants were afforded adequate notice and a meaningful

opportunity to respond before the trial court imposed

sanctions. The defendants argue that the court ordered

sanctions in an overly summary process because, on

Monday, June 17, 2019, the plaintiffs filed their motion

requesting court review of the broadcast, along with

expedited briefing on ‘‘what orders must issue in connection with [Jones’] on-air statements,’’ and indicated

they would move for ‘‘specific relief on an expedited

basis,’’ and, the very next day, the court ruled on the

merits of the plaintiffs’ motion for sanctions without any

briefing by the defendants. Additionally, the defendants

argue that the court handed their attorney a copy of a

recent judicial decision the court considered instructive; see Maurice v. Chester Housing Associates Ltd.

Partnership, supra, 188 Conn. App. 21; and gave the

defendants’ counsel only the lunch hour to prepare

for argument on whether the trial court should order

sanctions. The plaintiffs counter that the defendants

were afforded sufficient due process because the trial

court repeatedly had warned them that it would revoke

the opportunity to pursue the special motions to dismiss. They also point out that a June 17, 2019 court

order notified counsel that they should be prepared to

discuss the broadcast at the hearing scheduled for the

following day. Finally, the plaintiffs argue that the

defendants did not at any point indicate to the court

APP.30

that they needed additional time to prepare. We agree

with the plaintiffs and conclude that the trial court’s

sanctions did not violate the defendants’ due process

rights.

‘‘At their core, the due process clauses of the state

and federal constitutions require that one subject to a

significant deprivation of liberty or property must be

accorded adequate notice and a meaningful opportunity

to be heard.’’ Council on Probate Judicial Conduct re

James H. Kinsella, 193 Conn. 180, 207, 476 A.2d 1041

(1984); see CFM of Connecticut, Inc. v. Chowdhury,

supra, 239 Conn. 393 (‘‘As a procedural matter, before

imposing . . . sanctions, the court must afford the

sanctioned party or attorney a proper hearing on the

. . . motion for sanctions. . . . There must be fair

notice and an opportunity for a hearing on the record.’’

(Citation omitted; internal quotation marks omitted.)).

‘‘Whether the defendant was deprived of his due process

rights is a question of law, to which we grant plenary

review.’’ (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291

Conn. 489, 500, 970 A.2d 570 (2009).

Having reviewed the record, we conclude that the

defendants received adequate notice so as to be

apprised of the possibility of sanctions entering as a

result of their conduct.37 Specifically, the plaintiffs filed

a motion seeking sanctions several months earlier

because of the defendants’ discovery noncompliance.

The trial court discussed the possibility of sanctioning

the defendants on several occasions and had reissued

this warning in its order on June 10, 2019, regarding

the outstanding Google Analytics material. The day

before the hearing, the plaintiffs indicated that they

would seek interim relief, and the court issued an order

stating that it would address the broadcast at the hearing. Because of the trial court’s countless warnings that

it would sanction the defendants in this specific manner, the defendants cannot reasonably contest that they

were not adequately notified of the possibility of such

sanctions. Cf. Fattibene v. Kealey, 18 Conn. App. 344,

350, 353–54, 558 A.2d 677 (1989) (reversing sanctions

order when trial court ruled on motion for sanctions

without first considering plaintiff’s objection). In addition, the trial court held a hearing, at which it heard

thorough argument on the issue, and at no point during

the argument did the defendants request additional

time.38 This satisfies the due process requirement for a

meaningful opportunity to be heard. See, e.g., Thalheim

v. Greenwich, 256 Conn. 628, 650–51, 775 A.2d 947

(2001) (concluding that sanctioned attorney had been

afforded ‘‘adequate notice and a meaningful opportunity

to be heard’’ when trial court issued order requesting

that he ‘‘show cause why [he] should not be sanctioned’’

and attorney received hearing (internal quotation

marks omitted)).

APP.31

The sanctions orders are affirmed.

In this opinion the other justices concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

This case originally was scheduled to be argued before a panel of this

court consisting of Chief Justice Robinson and Justices Palmer, McDonald,

D’Auria, Mullins, Kahn and Ecker. Although Justice Palmer was not present

when the case was argued before the court, he has read the briefs and

appendices, and listened to a recording of the oral argument prior to participating in this decision.

** July 23, 2020, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1

The plaintiffs are Erica Lafferty, David Wheeler, Francine Wheeler, Jacqueline Barden, Mark Barden, Nicole Hockley, Ian Hockley, Jennifer Hensel,

Jeremy Richman, Donna Soto, Carlee Soto-Parisi, Carlos M. Soto, Jillian

Soto, and William Aldenberg.

2

The defendants participating in this appeal are Jones and several of his

affiliated corporate entities, namely, Infowars, LLC, Free Speech Systems,

LLC, Infowars Health, LLC, and Prison Planet TV, LLC. We refer to these

parties collectively as the defendants and, when necessary, individually

by name.

The additional defendants named in the complaint, Wolfgang Halbig, Cory

T. Sklanka, Genesis Communications Network, Inc., and Midas Resources,

Inc., are not parties to this appeal.

3

The defendants appeal pursuant to the Chief Justice’s grant of their

petition to file an expedited public interest appeal pursuant to General

Statutes § 52-265a. A sanctions order for discovery violations generally is

considered interlocutory and is not appealable until a party is held in contempt for noncompliance. Incardona v. Roer, 309 Conn. 754, 760, 73 A.3d

686 (2013). We have appellate jurisdiction, however, because it is well established that ‘‘appeals from interlocutory orders may be taken pursuant to

§ 52-265a.’’ Foley v. State Elections Enforcement Commission, 297 Conn.

764, 767 n.2, 2 A.3d 823 (2010).

4

SLAPP is an acronym for ‘‘strategic lawsuit against public participation,’’

the ‘‘distinctive elements of [which] are (1) a civil complaint (2) filed against

a nongovernment individual (3) because of their communications to government bodies (4) that involves a substantive issue of some public concern.

. . . The purpose of a SLAPP suit is to punish and intimidate citizens who

petition state agencies and have the ultimate effect of chilling any such

action.’’ (Citation omitted; internal quotation marks omitted.) Field v.

Kearns, 43 Conn. App. 265, 275–76, 682 A.2d 148, cert. denied, 239 Conn.

942, 684 A.2d 711 (1996).

5

General Statutes § 52-196a provides in relevant part: ‘‘(b) In any civil

action in which a party files a complaint, counterclaim or cross claim against

an opposing party that is based on the opposing party’s exercise of its right

of free speech, right to petition the government, or right of association under

the Constitution of the United States or the Constitution of the state in

connection with a matter of public concern, such opposing party may file

a special motion to dismiss the complaint, counterclaim or cross claim.

‘‘(c) Any party filing a special motion to dismiss shall file such motion

not later than thirty days after the date of return of the complaint, or the

filing of a counterclaim or cross claim described in subsection (b) of this

section. The court, upon a showing of good cause by a party seeking to file

a special motion to dismiss, may extend the time to file a special motion

to dismiss.

‘‘(d) The court shall stay all discovery upon the filing of a special motion

to dismiss. The stay of discovery shall remain in effect until the court grants

or denies the special motion to dismiss and any interlocutory appeal thereof.

Notwithstanding the entry of an order to stay discovery, the court, upon

motion of a party and a showing of good cause, or upon its own motion,

may order specified and limited discovery relevant to the special motion

to dismiss.

‘‘(e) (1) The court shall conduct an expedited hearing on a special motion

to dismiss. . . . (2) When ruling on a special motion to dismiss, the court

shall consider pleadings and supporting and opposing affidavits of the parties

attesting to the facts upon which liability or a defense, as the case may be,

is based. (3) The court shall grant a special motion to dismiss if the moving

party makes an initial showing, by a preponderance of the evidence, that

the opposing party’s complaint, counterclaim or cross claim is based on the

APP.32

moving party’s exercise of its right of free speech, right to petition the

government, or right of association under the Constitution of the United

States or the Constitution of the state in connection with a matter of public

concern, unless the party that brought the complaint, counterclaim or cross

claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates to the court that there

is probable cause, considering all valid defenses, that the party will prevail

on the merits of the complaint, counterclaim or cross claim. (4) The court

shall rule on a special motion to dismiss as soon as practicable.

‘‘(f) (1) If the court grants a special motion to dismiss under this section,

the court shall award the moving party costs and reasonable attorney’s fees,

including such costs and fees incurred in connection with the filing of the

special motion to dismiss. (2) If the court denies a special motion to dismiss

under this section and finds that such special motion to dismiss is frivolous

and solely intended to cause unnecessary delay, the court shall award costs

and reasonable attorney’s fees to the party opposing such special motion

to dismiss.

‘‘(g) The findings or determinations made pursuant to subsections (e) and

(f) of this section shall not be admitted into evidence at any later stage of

the proceeding or in any subsequent action. . . .’’

6

Similar interrogatories and requests for production, with small variations

in number and language, were made to Cory T. Sklanka, Wolfgang Halbig,

Free Speech Systems, LLC, Infowars Health, LLC, Infowars, LLC, Prison

Planet TV, LLC, Midas Resources, Inc., and Genesis Communications Network, Inc. In addition, the plaintiffs noticed the individual depositions of

Jones, Sklanka, Halbig, Kurt Nimmo, the former editor of Infowars, LLC,

and Steve Pieczenik, a guest on Jones’ radio show who had expressed that

the Sandy Hook shooting was a hoax, as well as the corporate designees

of Free Speech Systems, LLC, Genesis Communications Network, Inc.,

Infowars Health, LLC, Infowars, LLC, Midas Resources, Inc., and Prison

Planet TV, LLC.

7

The defendants filed motions for an extension of time on February 22,

2019, the day before production was due. It does not appear that the trial

court decided those motions.

8

Practice Book § 13-14 provides in relevant part: ‘‘(a) If any party has

failed to answer interrogatories or to answer them fairly, or has intentionally

answered them falsely or in a manner calculated to mislead, or has failed

to respond to requests for production or for disclosure of the existence and

contents of an insurance policy or the limits thereof, or has failed to submit

to a physical or mental examination, or has failed to comply with a discovery

order made pursuant to Section 13-13, or has failed to comply with the

provisions of Section 13-15, or has failed to appear and testify at a deposition

duly noticed pursuant to this chapter, or has failed otherwise substantially

to comply with any other discovery order made pursuant to Sections 13-6

through 13-11, the judicial authority may, on motion, make such order as

the ends of justice require.

‘‘(b) Such orders may include the following: (1) The entry of a nonsuit

or default against the party failing to comply . . . [and] (5) If the party

failing to comply is the plaintiff, the entry of a judgment of dismissal. . . .’’

9

The defendants and the plaintiffs both included transcripts of the June

14, 2019 broadcast in their appendices filed with this court. Their transcripts

do not differ materially with respect to the language quoted in this opinion

except for one phrase. The defendants’ transcript uses the phrase ‘‘white

shoe boy,’’ whereas the plaintiffs’ transcript uses the phrase ‘‘white Jew boy

. . . .’’ The trial court, in its oral decision ordering sanctions, relied on the

plaintiffs’ transcript containing the phrase ‘‘white Jew boy . . . .’’ The defendants subsequently filed a motion to correct the transcript, which the trial

court did not decide.

In their appellate briefs, the defendants noted the inconsistencies between

the two transcripts and that the trial court had not ruled on their motion

to correct, but they do not specifically challenge the accuracy of this phrase

on appeal. As the trial court did not decide the motion to correct, we omit

the words ‘‘Jew’’ and ‘‘shoe’’ in the quoted transcript.

The transcripts of the broadcast each exceed thirty pages, so we have

not reproduced them in their entirety. We include only those portions relied

on by the trial court, supplemented when necessary for context. Specifically,

we have omitted those portions in which Jones discusses the case’s background and the details of the child pornography incident, Jones’ introduction

of Pattis, Jones’ critique of the plaintiffs’ case and the Google Analytics

reports, discussion of the first amendment ramifications of questioning the

APP.33

veracity of the Sandy Hook shooting, most of Pattis’ statements, and other

duplicative or irrelevant portions of the broadcast.

10

The defendants’ transcript provides: ‘‘Look. You’re showing Chris

Mattei’s photograph on the air.’’

11

The defendants’ transcript provides: ‘‘No, I’m sure—you don’t think

errand boy did this. I’m actually not saying that.’’

12

The trial court also indicated that it would award attorney’s fees related

to the child pornography issue at a later date, ‘‘upon further hearing and

the filing of affidavits . . . .’’

13

The trial court also stated: ‘‘Now, the transcript doesn’t reflect this, but,

when I listened to the broadcast, I heard, I’m going to kill. Now, that’s not

in the transcript, but that is my read and understanding, and what I heard

[o]n the broadcast.’’ Because the word ‘‘kill’’ is not mentioned in the transcripts, we do not consider it in our analysis of the trial court’s sanctions

orders.

14

The defendants incorrectly state that the sanctioned party in Maurice

v. Chester Housing Associates Ltd. Partnership, supra, 188 Conn. App. 21,

did not challenge the sanction on first amendment grounds. Instead, the

Appellate Court declined to reach the issue, deeming the courthouse a

nonpublic forum. Id., 33 n.11.

15

These first amendment implications, however, often are not raised or

deeply considered. For example, in Carroll v. Jaques Admiralty Law Firm,

P.C., supra, 110 F.3d 294, the court succinctly concluded, without substantive

discussion, that the sanction imposed did not violate the affected party’s

first amendment rights. But see In re White, Docket No. 2:07CV342, 2013

WL 5295652, *38 (E.D. Va. September 13, 2013) (‘‘[w]here government action,

such as an award of sanctions, is directed toward presumptively protected

expression, our system of justice places ‘the duty . . . on this [c]ourt to

say where the individual’s freedom ends and the [s]tate’s power begins’ ’’).

16

Contempt cases are instructive because the power to sanction and the

power to hold an individual in contempt both stem from the court’s inherent

authority. See, e.g., Jaconski v. AMF, Inc., 208 Conn. 230, 232–33, 543 A.2d

728 (1988); 17 Am. Jur. 2d 399, Contempt § 1 (2004).

17

The importance of the legality of the action at issue is demonstrated

by the fact that the United States Supreme Court mentioned it twice. See

Bridges v. California, supra, 314 U.S. 277 (‘‘[o]n no construction, therefore,

can the telegram be taken as a threat either by [the defendant] or the union

to follow an illegal course of action’’); id., 278 (‘‘[l]et us assume that the

telegram could be construed as an announcement of [the defendant’s] intention to call a strike, something which, it is admitted, neither the general

law of California nor the court’s decree prohibited’’).

18

Actual interference might be construed as an additional factor under

the clear and present danger test. See Wood v. Georgia, supra, 370 U.S. 399

(Harlan, J., dissenting). Read in context, however, Wood suggests that the

court’s search for actual interference likely stems from the facts of Wood

rather than a substantive alteration to the Bridges standard, as the court

stated: ‘‘[I]n the absence of any showing of an actual interference with the

undertakings of the grand jury, this record lacks persuasion in illustrating

the serious degree of harm to the administration of law . . . .’’ (Emphasis

added.) Id., 393. Indeed, the court specifically observed that the harm that

speech could cause to a grand jury investigation is different from that of a

trial. See id., 390 (‘‘the limitations on free speech assume a different proportion when expression is directed toward a trial as compared to a grand jury

investigation’’). Also, earlier cases construing this test required an analysis of

imminence and likelihood, which is inconsistent with an actual interference

requirement. See Craig v. Harney, supra, 331 U.S. 373, 376; Pennekamp v.

Florida, 328 U.S. 331, 334, 350, 66 S. Ct. 1029, 90 L. Ed. 1295 (1946); Bridges

v. California, supra, 314 U.S. 263. As a result, we interpret Wood in harmony

with those cases that came before it and conclude that a showing of actual

interference is but one factor in the clear and present danger analysis.

19

The District Court also analyzed whether sanctions should enter under

a strict scrutiny analysis. In re White, supra, 2013 WL 5295652, *71.

20

Additionally, courts have applied Bridges to extrajudicial speech restrictions beyond contempt. For example, it was discussed recently by the Colorado Supreme Court in examining a jury tampering conviction. See People

v. Iannicelli, 449 P.3d 387, 392–93 (Colo. 2019). Although the case ultimately

was decided on grounds of statutory construction; see id., 394–97; the court

recognized that ‘‘[s]peech concerning judicial proceedings is not without

limits . . . because like free speech, a fair trial is one ‘of the most cherished

policies of our civilization’ and must also be protected.’’ Id., 392; see id.,

APP.34

396 n.3 (‘‘[W]e acknowledge that defining the precise scope of [Colorado’s

jury tampering statute] presents complex questions as to both [f]irst [a]mendment rights and the [s]tate’s interest in ensuring the fair and orderly administration of justice. The facts of this case, however, do not require us to

attempt to craft an all-encompassing rule applicable in every factual scenario.

Accordingly, we leave that difficult task for another day.’’); see also United

States v. Heicklen, 858 F. Supp. 2d 256, 274 (S.D.N.Y. 2012) (‘‘[t]he relevant

cases establish that the [f]irst [a]mendment squarely protects speech concerning judicial proceedings and public debate regarding the functioning of

the judicial system, so long as that speech does not interfere with the fair

and impartial administration of justice’’).

21

In their argument before the trial court, the defendants contended that

the broadcast ‘‘did not disrupt the administration of justice.’’

22

‘‘Men are entitled to speak as they please on matters vital to them;

errors in judgment or unsubstantiated opinions may be exposed, of course,

but not through punishment for contempt for the expression. Under our

system of government, counterargument and education are the weapons

available to expose these matters, not abridgment of the rights of free speech

and assembly.’’ Wood v. Georgia, supra, 370 U.S. 389.

23

The defendants disagree and cite to In re Sawyer, 360 U.S. 622, 636, 79

S. Ct. 1376, 3 L. Ed. 2d 1473 (1959), for the proposition that the parties’

speech cannot be ‘‘more censurable’’ than that of nonparties during the

pendency of a court case. We disagree. In re Sawyer concerns an attorney,

not a party, and supports the opposite view when quoted in context: ‘‘We

can conceive no ground whereby the pendency of litigation might be thought

to make an attorney’s out-of-court remarks more censurable, other than

that they might tend to obstruct the administration of justice. Remarks

made during the course of a trial might tend to such obstruction where

remarks made afterwards would not. But this distinction is foreign to this

case, because the charges and findings in no way turn on an allegation of

obstruction of justice, or of an attempt to obstruct justice, in a pending

case.’’ (Emphasis added.) Id.

24

It is important to note that, although Jones is a defendant and therefore

has not been willingly brought into the litigation, that status does not diminish the need for a fair trial, does not grant him license to harass and intimidate

opposing counsel, and does not lessen the potential impact of his statements

on the trial. However, not all speech by Jones regarding the case is sanctionable—only harassing and threatening speech that presents a likely and

imminent threat to the administration of justice. See, e.g., M. Swartz, Note,

‘‘Trial Participant Speech Restrictions: Gagging First Amendment Rights,’’

90 Colum. L. Rev. 1411, 1421–22 (1990) (noting special concerns for criminal

and civil defendants). This fact, along with the nature of civil proceedings

as a whole, supports our use of the most stringent standard to analyze Jones’

speech. See Chicago Council of Lawyers v. Bauer, supra, 522 F.2d 257–58

(noting how fair trial concerns are lessened in civil litigation).

25

It is important to note that a judge may still sanction for threatening

or intimidating speech in the absence of actual interference with the administration of justice, yet we consider these direct threats as aggravating circumstances in this particular case.

26

It is unclear whether these threats against the trial judge stemmed from

the original broadcast or a subsequent broadcast by Jones discussing the

sanctions orders.

27

The trial court specifically considered this when it questioned defense

counsel about how Jones’ speech affects the ‘‘integrity of the process here

and the functioning of the court and the judicial process . . . .’’

28

In fact, the defendants implicitly recognized this interference, as they

argued to the trial court that Attorney Mattei should not participate in the

case if he feels threatened, stating: ‘‘[I]f you’ve got a former federal prosecutor in here who’s saying, as a result of this, he can’t do his job, then maybe

you should get him off the case because he’s not prepared to serve his

clients.’’ The defendants renewed this argument in their brief to this court,

arguing: ‘‘If [Mattei] feels sufficiently chilled or impaired, he can, of course,

seek to withdraw as counsel.’’

The defendants also argue that Jones, in a subsequent broadcast, ‘‘made

clear he did not intend to threaten [Mattei].’’ The trial court interpreted this

later broadcast as a classic nonapology, stating: ‘‘[W]hen I watched the

broadcast several times, I wasn’t able to see an apology in there. . . . It

doesn’t sound like an apology.’’

29

The plaintiffs also argue that Jones’ speech qualifies as a true threat

unprotected by the first amendment. The defendants disagree with this

APP.35

assertion, arguing that the broadcast ‘‘was not unequivocal, unconditional,

immediate and specific [so] as to convey a gravity of purpose and imminent

prospect of execution.’’ Additionally, the defendants argue that the trial

court did not allow Jones the opportunity to present evidence to counter

a true threat finding, distinguishing this case from Haughwout v. Tordenti,

332 Conn. 559, 211 A.3d 1 (2019). We initially note that, as the case currently

stands, the record is not adequately developed to determine whether Jones’

statements qualify as a true threat. But cf. id., 562 n.4 (trial court’s decision

was supported by facts from disciplinary proceeding and plaintiff’s testimony). Because we have determined that Jones’ speech constituted an

imminent and likely threat to the administration of justice, we need not

reach the issue of whether Jones’ speech also qualifies under a different

category of unprotected speech as a matter of law.

30

The defendants purport to dispute these issues in their brief by stating,

in a heading, that ‘‘[t]he court sanctioned [them] for violating the discovery

process . . . despite the lack of sufficiently clear orders or actual violations.’’ Despite mentioning this in the heading, there is no clear argument

in the brief to support this argument. Instead, the defendants’ discovery

argument basically contests the merits and breadth of the discovery permitted by the trial court. As a result, we construe the first two prongs of

Millbrook Owners’ Assn., Inc. v. Hamilton Standard, supra, 257 Conn.

17–18, as undisputed. ‘‘We repeatedly have stated that [w]e are not required

to review issues that have been improperly presented to this court through

an inadequate brief. . . . Analysis, rather than mere abstract assertion, is

required in order to avoid abandoning an issue by failure to brief the issue

properly. . . . [F]or this court judiciously and efficiently to consider claims

of error raised on appeal . . . the parties must clearly and fully set forth

their arguments in their briefs. . . . The parties may not merely cite a legal

principle without analyzing the relationship between the facts of the case

and the law cited.’’ (Citation omitted; internal quotation marks omitted.)

State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016).

31

For example, even after the trial court ordered the defendants to produce

the Google Analytics materials on June 10, 2019, the defendants continued

to contest whether they should be ordered to produce the data.

32

At a March 22, 2019 hearing, Attorney Pattis stated: ‘‘I was given those

documents on or about March 6. I was also given some interrogatory

responses on March 6. Those interrogatory responses were not satisfactory

to my way of thinking.’’

33

At the March 22, 2019 hearing, the court explained: ‘‘I think part of the

problem is that your clients are maybe tying their own lawyers’ hands by

getting other lawyers involved so that nobody knows what anyone else is

doing. That would be the most favorable light. . . . The least favorable

light would be manipulation.’’

34

At an April 3, 2019 hearing, the plaintiffs’ counsel cited ‘‘delay after

delay after delay by a party [who] . . . invoked the statute but [who] wasn’t

prepared to comply with its provisions, [which] is prejudicing my clients.’’

35

The plaintiffs’ counsel argued that the Google Analytics would show

‘‘[s]ales, pricing, web traffic, that is, hits on the website and hits on the

Infowars store website.’’ He further argued that ‘‘Infowars [LLC] and Free

Speech Systems [LLC] [generate] millions and millions and millions of dollars

of revenue each year. The content that they broadcast, including the content

about Sandy Hook, they use to drive traffic to their website. That’s why

we’re entitled to this stuff.’’

36

Although the legislative history of the anti-SLAPP statute does not further illuminate the meaning of the phrase ‘‘good cause,’’ as used in § 52196a (d), we find the purpose of the statute instructive. Speaking in support

of the bill later enacted as § 52-196a, then Representative William Tong

explained that it was intended to address ‘‘situations in which people have

spoken out on matters of public concern including the press and we’ve seen

situations where people file litigation. There appears to be no basis to

that litigation but it’s designed to chill free speech and the expression of

constitutional rights, and so this provides for a special motion to dismiss

so that early in the process somebody who’s speaking and exercised their

constitutional rights can try to dismiss a frivolous or abusive claim that has

no merit and short circuit a litigation where it might otherwise cost a great

deal of money to continue to prosecute. We think it’s an important measure

. . . to promote free speech and reporting by our news organizations as

well.’’ 60 H.R. Proc., Pt. 16, 2017 Sess., pp. 6879–80; see also footnote 4 of

this opinion.

37

The defendants rely on New Hartford v. Connecticut Resources Recovery

APP.36

Authority, supra, 291 Conn. 489, to support their claim of a due process

violation. In that case, we held that the defendants were not afforded sufficient due process after a trial court found them in contempt. Id., 491. The

present case, however, is distinguishable because, in New Hartford, the

defendants indicated at the hearing that they were unprepared to address

the violation of the gag order. Id., 494–95. In addition, ‘‘[t]he defendant was

given less than one day to consider a motion for contempt,’’ and ‘‘[t]he

defendant’s attorney stated that he had not read the full text of the posting,

that he had not been able to speak to the persons responsible for the website

posting or anyone else and that he would like to speak to them about why

they had posted the article.’’ Id., 501. In contrast, unlike the attorney in New

Hartford, Attorney Pattis was present on the broadcast, witnessed Jones’

allegedly sanctionable conduct, and made representations to the court on

the basis of his observations during the broadcast. Additionally, although

the plaintiffs had filed motions requesting a review of the broadcast the day

before the hearing, the plaintiffs had pending motions for sanctions left

unanswered for several months. Also, the defendants were well aware of

the court’s warnings that it might sanction them if discovery noncompliance

continued. As a result, we are not persuaded that New Hartford controls

the present case.

38

The defendants did file a motion for a stay the day before the hearing

so that Attorney Pattis could address a conflict of interest concern that had

arisen. The trial court denied this motion. The defendants do not challenge

this ruling on appeal.

APP.37

APPENDIX B

Order of the Connecticut Supreme Court Denying

Reconsideration, Lafferty v. Jones, SC20327 (September 15,

2020).

APP.38

SUPREME COURT

STATE OF CONNECTICUT

SC 20327

ERICA LAFFERTY ET AL.

v.

ALEX EMRIC JONES ET AL.

SEPTEMBER 15, 2020

ORDER

THE MOTION OF THE DEFENDANTS-APPELLANTS, FILED AUGUST 12,

2020, FOR RECONSIDERATION, HAVING BEEN PRESENTED TO THE COURT, IT

IS HEREBY O R D E R E D DENIED.

BY THE COURT,

/S/

L. JEANNE DULLEA

ASSISTANT CLERK-APPELLATE

NOTICE SENT: SEPTEMBER 16, 2020

COUNSEL OF RECORD

HON. BARBARA N. BELLIS

CLERK, SUPERIOR COURT UWY-CV18-6046436-S

200054

APP.39

APPENDIX C

Order of the Connecticut Supreme Court Denying Motion To

Stay Pending A Petition For A Writ of Certiorari, Lafferty v.

Jones, SC20327 (September 15, 2020).

APP.40

SUPREME COURT

STATE OF CONNECTICUT

SC 20327

ERICA LAFFERTY ET AL.

v.

ALEX EMRIC JONES ET AL.

SEPTEMBER 15, 2020

ORDER

THE MOTION OF THE DEFENDANTS-APPELLANTS, FILED JULY 28, 2020,

FOR STAY PENDING DECISION BY UNITED STATES SUPREME COURT, HAVING

BEEN PRESENTED TO THE COURT, IT IS HEREBY O R D E R E D DENIED.

BY THE COURT,

/S/

L. JEANNE DULLEA

ASSISTANT CLERK-APPELLATE

NOTICE SENT: SEPTEMBER 16, 2020

COUNSEL OF RECORD

HON. BARBARA N. BELLIS

CLERK, SUPERIOR COURT UWY-CV18-6046436-S

200036

APP.41

APPENDIX D

Order of the Connecticut Supreme Court Denying

Supplemental Motion To Stay Pending A Petition For A Writ

of Certiorari, Lafferty v. Jones, SC20327 (September 15, 2020).

APP.42

SUPREME COURT

STATE OF CONNECTICUT

SC 20327

ERICA LAFFERTY ET AL.

v.

ALEX EMRIC JONES ET AL.

SEPTEMBER 15, 2020

ORDER

THE MOTION OF THE DEFENDANTS-APPELLANTS, FILED AUGUST 10,

2020, FOR SUPPLEMENTAL MOTION FOR STAY PENDING DECISION BY UNITED

STATES SUPREME COURT, HAVING BEEN PRESENTED TO THE COURT, IT IS

HEREBY O R D E R E D DENIED.

BY THE COURT,

/S/

L. JEANNE DULLEA

ASSISTANT CLERK-APPELLATE

NOTICE SENT: SEPTEMBER 16, 2020

COUNSEL OF RECORD

HON. BARBARA N. BELLIS

CLERK, SUPERIOR COURT UWY-CV18-6046436-S

200049

APP.43

APPENDIX E

Transcript Containing the Decision of the Connecticut

Superior Court To Impose Sanctions, Lafferty v. Jones, Dkt.

No. UWY-CV-18-6046437-S; UWY-CV-18-6046438-S; UWYCV-18-6046436-S (June 18, 2020).

APP.44

NO: UWY-CV18-6046437 S

SHERLACH, WILLIAM

:

:

v.

JONES, ALEX, ET AL.

NO: UWY-CV18-6046438 S

LAFFERTY, ERICA, ET AL.

:

:

:

:

v.

JONES, ALEX EMRIC, ET AL.

NO: UWY-CV18-6046436 S

SHERLACH, WILLIAM, ET AL.

:

:

:

:

v.

JONES, ALEX EMRIC, ET AL.

:

:

SUPERIOR COURT

JUDICIAL DISTRICT

OF FAIRFIELD

AT BRIDGEPORT, CONNECTICUT

JUNE 18, 2019

SUPERIOR COURT

JUDICIAL DISTRICT

OF FAIRFIELD

AT BRIDGEPORT, CONNECTICUT

JUNE 18, 2019

SUPERIOR COURT

JUDICIAL DISTRICT

OF FAIRFIELD

AT BRIDGEPORT, CONNECTICUT

JUNE 18, 2019

BEFORE THE HONORABLE BARBARA N. BELLIS, JUDGE

A P P E A R A N C E S :

Representing the Plaintiffs:

ATTORNEY CHRISTOPHER MATTEI

ATTORNEY WILLIAM BLOSS

ATTORNEY JOSHUA KOSKOFF

ATTORNEY MATTHEW BLUMENTHAL

Koskoff, Koskoff & Bieder, PC

350 Fairfield Avenue

Bridgeport, CT 06604

Representing the Defendants Alex Jones; Infowars, LLC; Free

Speech Systems, LLC; Infowars Health, LLC; and Prison Planet

TV, LLC:

ATTORNEY ZACHARY REILAND

ATTORNEY NORMAN PATTIS

Pattis & Smith, LLC

383 Orange Street

1st Floor

New Haven, CT 06511

Representing the Defendant Cory Sklanka:

ATTORNEY KRISTAN JAKIELA

Regnier, Taylor, Curran & Eddy

100 Pearl Street

14th Floor

Hartford, CT 06103

Representing the Defendant Midas Resources, Inc.:

ATTORNEY STEPHEN BROWN

Wilson Elser Moskowitz Edelman & Dicker

1010 Washington Boulevard

Stamford, CT 06901

Recorded By:

Colleen Birney

Transcribed By:

Colleen Birney

Court Recording Monitor

1061 Main Street

Bridgeport, CT 06604

APP.45

1

1

THE COURT:

We’re here on Lafferty v Jones.

2

It’s a Waterbury case, UWY-CV18-6046436, and the

3

related matters.

4

themselves for the record, please?

5

If Counsel could identify

ATTY. MATTEI:

Good afternoon, Your Honor; Chris

6

Mattei, Bill Bloss, Josh Koskoff, and Matt Blumenthal

7

on behalf of the plaintiffs.

8

ATTY. REILAND:

Good afternoon, Your Honor;

9

Attorney Zachary Reiland on behalf of the Jones

10

defendants.

11

12

13

14

15

16

17

ATTY. BROWN:

Good afternoon, Your Honor;

Stephen Brown on behalf of the Midas defendant.

ATTY. JAKIELA:

Good afternoon, Your Honor;

Kristan Jakiela on behalf of Cory Sklanka.

THE COURT:

All right.

Just give me one moment,

please.

So Attorney Pattis did stop by this morning on

18

scheduling.

We had no other discussions besides

19

scheduling.

He indicated he was before Judge Gould,

20

but that, Counsel, you would be here in his stead and

21

that he did not need to be here or wish necessarily

22

to be here.

23

24

ATTY. REILAND:

That’s correct, Your Honor.

Thank you.

25

THE COURT:

Okay.

26

All right.

So I did -- I’ll take up the matters

27

Just wanted to clarify that.

that I’ve adjudicated and then we’ll see where we go

APP.46

2

1

from there.

2

So I did deny the motion for stay that the

3

defendant filed.

And I assume if at some point

4

there’s a motion to withdraw, that would be

5

adjudicated in due course.

6

The motion for clarification that the defendant

7

-- the Jones defendant filed -- let me just find the

8

date on that.

9

filed, the motion -- defendant -- the Jones defendant

10

motion for clarification?

11

ATTY. REILAND:

12

filed on June 11th.

13

THE COURT:

14

ATTY. REILAND:

I believe.

15

ATTY. MATTEI:

Your Honor, it’s dated June 12th.

16

THE COURT:

Counsel, do you know the date that was

What date it was filed?

It was

Thank you.

Perfect.

Thank you.

It’s filed under request.

Yeah, I see

17

it.

All right.

That is

18

denied as well.

19

defendant should be guided by the language in the

20

actual requests for interrogatory and production.

21

So I’ve read all the filings to date and I --

And I would simply say that the

22

including the recent ones.

And I don’t -- I don’t

23

really care which way we proceed, what you want to

24

take up first.

25

discussions, but I’m prepared to deal with them all

26

today and rule on anything that’s outstanding today.

27

I did want to ask first, though, with regard to

I don’t know if you’ve had any

APP.47

3

1

discovery if there has been additional discovery

2

since we last met in person.

3

ATTY. REILAND:

Your Honor, we haven’t tendered

4

anything to the plaintiffs.

5

did get some Google Analytics documents from Austin

6

from Free Speech Systems.

7

catalogue those and turn them over.

8

will be coming --

9

10

THE COURT:

12

THE COURT:

--

ATTY. REILAND:

15

THE COURT:

18

19

That’s correct.

-- by the Alex Jones defendants, for

14

17

That probably

met, there’s not been any further production -ATTY. REILAND:

16

I have not had a chance to

So the answer would be since we last

11

13

However, last night I

It is.

-- example, the -- the cellphone

information.

ATTY. REILAND:

produced.

The cellphone has not been

No, Your Honor.

THE COURT:

Okay.

All right.

Because I just

20

would note that the deadline for producing at least

21

the data from the Google Analytics I believe was

22

Monday.

So that deadline already passed.

23

ATTY. REILAND:

24

THE COURT:

But --

I understand that, Your Honor.

-- in any event, did you have any

25

discussions on how you want to proceed, which motion

26

first?

27

ATTY. REILAND:

We did not.

APP.48

4

1

THE COURT:

Okay.

Because I think I’m prepared

2

to rule on the discovery motions without argument in

3

light of the fact that nothing’s changed since you

4

were last here.

5

up your emergency motion?

6

ATTY. MATTEI:

So I suppose then you want to take

Your Honor, the -- the only other

7

issue, unless you’re prepared to rule on this as

8

well, is any sanctions that may apply as a result of

9

the noncompliance.

10

you’re going to do there, then we don’t need to offer

11

anything.

12

THE COURT:

If you already decided what

I’m going to rule on -- from the

13

bench on all the motions at the end of all of them.

14

So the one that I was -- the only -- you’re really

15

not entitled to argument on any of these, but I was

16

going to afford you argument if you wished on the

17

emergency motion that you filed.

18

ATTY. MATTEI:

With respect to the discovery

19

motions, Your Honor, in the Court’s order I believe

20

of June 10th --

21

THE COURT:

22

motions, I’m good.

23

your motion regarding the broadcast.

24

25

26

27

Well, I’m not -- on the discovery

ATTY. MATTEI:

I think I was more directed to

Yes.

And Attorney Bloss will be

handling any issues relating to the broadcast.

THE COURT:

All right.

So the discovery I don’t

need any further argument on that.

I did just want

APP.49

5

1

to say one thing to both sides.

2

sides filed a motion and objection with hyperlinks, I

3

suppose, to Infowars shows that I didn’t want to -- I

4

don’t think I could even access them from the court

5

computer and I sure didn’t want to try.

6

able to do it from home last night.

7

if those hyperlinks change and the materials change.

8

But in any event, just for a good appellate record,

9

I’m ordering both sides to retain copies of the

10

actual broadcast or whatever you want to call it, the

11

videos, make a copy, and retain it because I just

12

want to make sure the hyperlink -- you know, it isn’t

13

taken down or destroyed or whatever.

14

a good appellate record, okay?

15

ATTY. MATTEI:

So both of -- both

So I was

But I don’t know

Just so we have

And for the record, Your Honor,

16

the plaintiffs have already downloaded and preserved

17

both the June 14th and June 15th broadcasts.

18

19

THE COURT:

That’s what I was looking for.

And

Counsel, you might want to do the same thing --

20

ATTY. REILAND:

21

THE COURT:

22

ATTY. REILAND:

23

THE COURT:

Understand.

-- so that we don’t have any issues.

We have.

Okay.

24

Whenever you’re ready.

25

ATTY. BLOSS:

Thank you, Your Honor.

So Attorney Bloss will argue.

Yes, Your Honor.

And I think to

26

the latter point, we also have caused to be prepared

27

a paper transcript of both of the shows, the relevant

APP.50

6

1

sections, what we believe are the relevant sections

2

of the shows.

3

for the record?

4

THE COURT:

If you would like to have that marked

Well, I don’t have a Clerk.

Is that

5

something that you can give me and then just have

6

your office e-file?

7

ATTY. BLOSS:

8

THE COURT:

9

ATTY. BLOSS:

10

THE COURT:

11

Yes, of course.

Okay.

Sure.

And have you given a copy to Defense

Counsel?

12

ATTY. BLOSS:

13

THE COURT:

14

your office prepared?

15

ATTY. BLOSS:

16

I have extra copies, yes.

So this is just a transcript that

Well, no, a Court -- a Court

Reporter.

17

THE COURT:

Court Reporter.

18

ATTY. BLOSS:

19

THE COURT:

20

ATTY. BLOSS:

Not our office.

Okay.

And to be fair, Your Honor, I have

21

not compared this to the original.

22

soon as I can.

23

done late yesterday.

24

THE COURT:

I will do that as

But we did -- this was able to be

All right.

Just as long as you have

25

copies for each of the defendants and you give me a

26

bench copy and then you just have your office, if you

27

don’t mind, e-file the copy since -APP.51

7

1

ATTY. BLOSS:

May I approach?

2

THE COURT:

3

and hand it to me.

4

ATTY. BLOSS:

You can pass by my imaginary Clerk

Thank you.

So Your Honor, I think it would be

5

helpful on this particular issue to start with a

6

timeline because there seems to be -- just I think we

7

need to be clear about what happened and what didn’t

8

happen.

9

On May 21st of this year, the Jones defendants

10

did produce to our office a series of emails

11

electronically, approximately 58,000 in number.

12

were in different groups.

13

in any particular way, but they were produced in the

14

native form, if you will.

15

some discussions about making sure that these were

16

not just in PDF but were actually in an electronic

17

form so they could be sorted and reviewed

18

expeditiously.

They

They were not catalogued

I know that there were

19

We retained, Your Honor, an electronic storage

20

information expert, a consulting company, to help us

21

catalogue and go through those materials.

22

immediately review them ourselves.

23

consultants starting to catalogue them and search

24

them.

25

our consultants that there was a -- an image that the

26

consultants believed was child pornography attached

27

to one of the emails that the Jones defendants

We did not

We had our

On June 4th, Your Honor, we were informed by

APP.52

8

1

produced.

2

that time; the consultants did.

3

supposed to do under the law and we contacted the

4

FBI.

5

We obviously did not have custody of it at

We did what we were

The FBI immediately took within a few days, by

6

June 7th, took control of all of the emails.

7

not had access to them since then.

And the FBI said

8

that it would proceed accordingly.

We did provide a

9

hard drive; the FBI took custody of a hard drive with

10

all the materials on June 7th.

11

We have

On June 12th, we received word from the FBI that

12

-- that they were not going to -- that they had

13

determined, at least as to what we were being told,

14

that there were approximately 12 emails that had

15

images attached to them in one form or another, but

16

that they had been sent from the outside to the --

17

one or more of the Jones defendants or related

18

entities, and that as best the FBI could determine,

19

they had not been opened by any of the Jones

20

employees or defendants.

21

We then did what we were supposed to do and what

22

we were allowed to do and we notified Defense

23

Counsel, counsel for Mr. Jones, that -- what had

24

happened.

25

Honor, that up until -- well, let me say one other

26

event.

27

call between Defense Counsel, our office, and the

And I think it’s important to note, Your

On June 12th, there was a joint conference

APP.53

9

1

United States Attorney’s Office just summarizing

2

really what I’ve just summarized for you.

3

I think it’s important to note, Your Honor, that

4

our office did not make any public statement, private

5

statement, on-the-record, off-the-record statement to

6

anybody about the existence of these emails up until

7

the time -- up until ever, frankly, until we made

8

this filing yesterday.

9

THE COURT:

10

11

Thank you.

The --

Can you just give me one moment?

Go ahead.

ATTY. BLOSS:

On -- and we thought and still

12

firmly believe that we did what, first of all,

13

federal law requires us to do under the

14

circumstances, but second, what the rules of

15

professional conduct require us to do.

16

We then were -- we then learned, Your Honor, on

17

Friday, June 14th, that Mr. Jones and Mr. Pattis had

18

done a web show making certain allegations against

19

our office and against specifically one of the

20

attorneys in our office, Mr. Mattei.

21

has seen the video.

22

substance of the video here today.

23

subsequent show on June 15th where there were other -

24

- there was other discussion, if you will, of the --

25

of the emails.

26

THE COURT:

27

ATTY. BLOSS:

And Your Honor

I’m not going to argue the

There was then a

So the first show was the 14th?

Correct.

APP.54

10

1

THE COURT:

2

ATTY. BLOSS:

And the second show was the 15th.

Correct.

And I’ve actually been

3

informed that Mr. Pattis was on the show again last

4

night or yesterday at some point.

5

that one yet and I don’t know -- I don’t have any --

6

I can’t make any representations at all.

7

THE COURT:

I haven’t seen

So the show that was the hyperlink

8

in the plaintiffs’ motion was the June 14th one and

9

the show that was in the defendant’s motion --

10

objection was the June 15th show.

11

ATTY. REILAND:

12

THE COURT:

13

ATTY. BLOSS:

That’s correct.

Yes.

Thank you.

Yes, Your Honor.

So I -- I -- and

14

I think, Your Honor, we wanted to bring this to the

15

Court’s attention as quickly as possible because we

16

think that it is important for the Court to exercise

17

some control over the litigants in this case to make

18

sure -- or a litigant specifically, to make sure that

19

the threats stop.

20

deeply disturbing to us.

21

Court that law enforcement is involved.

22

since received threats from the outside that we are

23

addressing appropriately.

24

papers that we filed on Monday, I gave the Court some

25

authority where Courts have inherent power to

26

sanction parties who engage in obstructive conduct or

27

conduct that’s threatening.

The conduct on June 14th was

We have -- I can inform the

We have

And the Court, in the

And there’s no way to

APP.55

11

1

interpret what Mr. Jones said on Friday any way other

2

than a threat.

3

It is our intention, Your Honor, to file a

4

motion for sanctions.

5

up to and including default based on Mr. Jones’s

6

conduct.

7

within a very short period of time, and we’d ask for

8

a hearing on that motion as soon as possible.

9

We will be seeking a sanction

We would propose to get that motion filed

THE COURT:

Well, I am -- my clear

10

understanding, especially when Case Flow contacted

11

both sides, that this is the time that you’re going

12

to make your argument and you’re going to tell me why

13

sanctions should enter.

14

position and tell me why sanctions should not enter.

15

But I did do my own research as well, and I know

16

-- I’ll rule on this today, but I know it’s going to

17

be after lunch for sure, because by the time you’re

18

done arguing, I have to give the Monitor her break.

19

But I -- the case that I turned up was a Connecticut

20

Appellate Court case that came out just a couple

21

months ago, Maurice v Chester Housing Associates.

22

And that dealt with bad faith litigation, misconduct

23

that took place out of court.

24

email that was sent by a nonparty to the plaintiff’s

25

attorney.

26

email was a -- not a named defendant, but a partner

27

in the defendant partnership.

And Defense will argue their

It was actually an

And that case, the person who sent the

So -- and the Court

APP.56

12

1

upheld the Trial Court’s entering of sanctions in

2

that case.

3

illuminating and similar, although the conduct that’s

4

claimed there is not as egregious as the conduct

5

that’s claimed here.

6

ATTY. BLOSS:

7

speaks for itself.

8

happened.

9

video and chose to broadcast it to however many

10

people listen to him.

11

But that, I thought, was very

Well, and the conduct, Your Honor,

I don’t need to argue what

It’s -- Mr. Jones chose to do this on

I think one of the things that is particularly

12

disturbing, Your Honor, is that we’ve been here

13

before with Mr. Jones.

14

had to publically apologize after one of -- somebody

15

who said that he was inspired by his conduct went

16

into a pizza place and -- Planet Pizza in Washington,

17

DC, and fired shots to allegedly investigate a child

18

trafficking ring that Mr. Jones said, as I understand

19

it, was operating out of the basement.

20

better.

21

this about both attorneys in our office and really

22

about the -- the -- the entire firm and our -- the

23

litigation process really requires the most stringent

24

sanction available to the Court, which is to enter a

25

default.

26

alternative left.

27

If you’ll recall, Mr. Jones

He should know better.

He knows

And that now he says

I just don’t think there’s really any

Your Honor has been very patient in this case

APP.57

13

1

with the discovery process.

2

something very different.

3

wrong.

4

interesting that Defense Counsel says that there was

5

an apology in the June 15th show.

6

apology in the June 15th show.

7

by Mr. Jones, I’m not saying that Mr. Mattei planted

8

this email.

9

didn’t say I’m wrong.

10

didn’t do it.

11

Chris Mattei sent these emails.

12

I understand this is

But what was done here was

And in the June 15th, I think it’s

There was not an

There was a statement

That’s exactly what he said.

And he

Defense Counsel didn’t say he

Defense Counsel said I don’t think

Well, no kidding.

The fact that -- that -- that first of all, a

13

party would accuse a lawyer of planting these emails

14

when he knew better, we disclosed it to the FBI.

15

didn’t disclose it to the press.

16

that was required to do, and the reaction from Mr.

17

Jones was to try to punish, to try to -- to try to

18

accuse of the -- one of our lawyers of the most

19

serious kind of misconduct.

20

21

THE COURT:

We

We did everything

So you -- your firm found out from

your consultants on June 4th.

22

ATTY. BLOSS:

23

THE COURT:

Correct.

All right.

And I know we had a

24

status conference on June 5th here, and it was never

25

mentioned.

26

filing as well.

27

So my first knowledge of it was the

ATTY. BLOSS:

Well, we -- we didn’t mention it,

APP.58

14

1

Your Honor, because we thought it’s evidence of a

2

federal crime.

3

bringing to the attention of the FBI was the right

4

thing to do and I don’t think that anybody would

5

dispute that, honestly.

6

filing yesterday, Your Honor, that the emails, quote,

7

inadvertently, closed quote, produced to us.

8

we didn’t make -- we made no -- we took no advantage

9

from that whatsoever.

10

release them, we didn’t discuss it with you, we

11

didn’t discuss it with anybody because that’s what --

12

that’s what we are supposed to do.

13

right.

14

this right was to accuse one of our lawyers of not

15

only professional misconduct, but federal criminal

16

misconduct, and then to make threats against him.

17

It’s enough, Your Honor.

We thought and still believe that

Mr. Pattis says in his

Well,

We did not -- we did not

We did this

And the reaction of the defendant to us doing

18

THE COURT:

19

ATTY. BLOSS:

20

THE COURT:

This has gone far enough.

All right.

Anything further?

No, Your Honor.

So Counsel, whenever you’re ready.

21

I was hoping that you would address, because I read,

22

you know, the motion that you filed or that your

23

office filed, that referred to an apology.

24

I watched the broadcast several times, I wasn’t able

25

to see an apology in there.

26

27

ATTY. REILAND:

And when

Your Honor, I thought there was

an apology at the beginning of that broadcast.

And

APP.59

15

1

at the very least, he said that -- Mr. Jones said

2

that he understood that Mr. Mattei did not do this.

3

THE COURT:

4

ATTY. REILAND:

5

heard about --

6

THE COURT:

7

That’s -Quite simply, when Mr. Jones

Well, that might -- maybe be a

retraction.

8

ATTY. REILAND:

9

THE COURT:

10

ATTY. REILAND:

11

motion, Your Honor.

12

THE COURT:

13

ATTY. REILAND:

A retraction.

Although -Perhaps it was misstated in the

It doesn’t sound like an apology.

It was certainly walked back,

14

Your Honor.

And that was the -- the primary reason

15

of Attorney Pattis accompanying Mr. Jones on that

16

show the next day was to do that.

17

Quite simply, I think Mr. Jones was enraged when

18

he found out about this -- these images being sent to

19

him via email.

20

THE COURT:

Well, your position is that he was

21

enraged.

22

that he was portraying rage.

23

classify it maybe as a rant or a tirade.

24

he was genuinely enraged, as you suggest, or whether

25

he was just portraying that rage for his show, that’s

26

--

27

I mean, someone could view that and say

ATTY. REILAND:

You know, I would

But whether

Well, I can only -APP.60

16

1

THE COURT:

2

ATTY. REILAND:

3

-- that’s --- speak to, you know, my

communications with Mr. Jones and with his --

4

THE COURT:

Well, but then you need -- then you

5

would want to put on evidence in that regard, because

6

there’s no evidence.

7

broadcasts that you submitted.

8

is unchartered territory, Counsel.

9

despite my research, I couldn’t find a case that came

10

close to a situation where a party who still hasn’t

11

fully and fairly complied, but a party produced child

12

porn in their discovery documents.

13

couldn’t find a case, never heard of it.

14

really unprecedented, because now the party who

15

produced documents that contain child porn then go on

16

and broadcast their claims and accusations that the

17

child porn was planted there by the lawyers on the

18

other side.

19

here?

20

The evidence before me are the

So you have -- this

You have -- and

So that, I

But this is

So you tell me, what should the Court do

ATTY. REILAND:

Your Honor, we’re asking the

21

Court -- we understand that the plaintiffs are

22

seeking some serious sanctions right now.

23

we’re asking the Court for -- to deny any sanctions,

24

not impose sanctions at this time.

25

We are --

As I stated earlier, we do have -- I understand

26

the deadline has passed, it was yesterday, for the

27

metadata to be produced.

I have received that.

I

APP.61

17

1

have it on USB stick, attempted to give it to

2

Plaintiffs’ Counsel.

3

didn’t want to take it.

4

there’s no cover sheet with it.

5

works.

6

And I understand that they

It hasn’t been catalogued;

So that’s in the

Your Honor, I just think that, you know, Mr.

7

Jones did go on, attempted to walk back these

8

statements.

9

the tube at this point, so to speak.

10

I understand the toothpaste is out of

THE COURT:

And --

Well, can I ask you, Counsel, I

11

tried to estimate the length of time that the -- on

12

the show that was in the motion how long the tirade

13

or rant or whatever you want to characterize it went

14

on where Attorney Mattei’s picture was posted and,

15

you know, pounded on and discussed.

16

that, give or take, it was a solid 20 minutes of back

17

and forth on just the issue of the child porn and

18

being planted by either Attorney Mattei or --

19

ATTY. REILAND:

20

THE COURT:

It seemed to me

I understand that.

-- somebody in his firm.

So it

21

wasn’t just a passing reference or one single

22

statement.

23

24

ATTY. REILAND:

Not saying that it was, Your

Honor.

25

THE COURT:

And I am going to suggest that

26

during the break that you take a look at that -- that

27

case.

It’s -- I wish I had this -- it’s such a -APP.62

18

1

oh, here it is.

2

the Appellate Court upheld the sanctions of just

3

attorney’s fees that the Trial Court had entered and

4

it centered upon an email where the general partner,

5

who was not a party to the litigation but was a

6

general party (sic) of the defendant, simply sent an

7

email to the plaintiff’s lawyer that he wanted her to

8

sit on his -- I don’t want to -- F’ing head.

9

it spells it out there.

10

entire issue in that particular case, just that one

11

short six words or so.

12

beyond that.

13

188 Conn. App. 21.

ATTY. REILAND:

In that case,

I mean,

So that was the whole,

This would seem to be well

Understood.

And if we could

14

have a brief recess, I could take a look at that, I’d

15

appreciate it, Your Honor.

16

THE COURT:

Well, we can do that over the lunch

17

hour.

18

to have as much time as you want to make your

19

argument.

20

So I didn’t mean to cut you off.

ATTY. REILAND:

I want you

Your Honor, and I just want to

21

make clear, this was in our motion for stay as well

22

that obviously the turning over of these -- these

23

pictures was not intentional.

24

month or two being in the case that we produced these

25

documents in PDF form to the plaintiffs, which they

26

have been gone through, culled for privilege, culled

27

for anything else, relevance.

We had at least a

After that disclosure

APP.63

19

1

was completed, the plaintiffs say that they wanted

2

the metadata for this.

3

turn that over.

We had a very short time to

4

Our firm, quite simply, does not have the

5

resources, Mr. Jones does not have the resources to

6

farm this out to a sophisticated data firm like the

7

plaintiffs have done here.

8

THE COURT:

Well, let me just interrupt you

9

there.

10

videos over and over again, I watched and listened to

11

Mr. Jones talk about what was first going to be I

12

think $100,000 reward and then it -- he upped it to a

13

million-dollar reward to --

14

15

ATTY. REILAND:

that.

16

17

18

19

20

When I did my job last night and watched the

Your Honor, I can’t speak to

I think he has -THE COURT:

So I mean, it sound -- when you are

-ATTY. REILAND:

-- I think on that next

broadcast, he walked back that reward as well.

Quite simply, we did not intentionally turn over

21

these documents.

We absolutely respect the

22

plaintiffs for doing what we did.

23

the FBI’s investigation and bring whoever sent these

24

emails to justice.

25

THE COURT:

We look forward to

So do you -- is the Alex Jones

26

defendants’ position that Mr. Jones never threatened

27

Attorney Mattei or that he walked back any threats?

APP.64

20

1

2

ATTY. REILAND:

that what he said did not rise to a threat.

3

THE COURT:

4

ATTY. REILAND:

5

Our position is, Your Honor,

there.

Okay.

There was no imminent danger

He was --

6

THE COURT:

7

next question.

All right.

8

ATTY. REILAND:

9

apologize, Your Honor.

10

THE COURT:

11

ATTY. REILAND:

So let me ask you the

-- he was referring to -- and I

That’s all right.

He was, in the same breath,

12

referring to Mr. Mattei but also offering a reward to

13

find who did it.

14

think it was a threat.

15

THE COURT:

So quite frankly, we just don’t

Okay.

Do you take the position that

16

broadcasting for 20 minutes or so what he broadcast

17

with Attorney Mattei’s picture and pounding the

18

picture and putting up the Wikipedia information and

19

so on and so forth and stating what he stated was

20

harassing, and then he walked it back the next day?

21

Or is it your position that it wasn’t harassing?

22

ATTY. REILAND:

Your Honor, I don’t think it was

23

-- it was appropriate, but I don’t know if it rises

24

to an action -- and actionable practice, excuse me.

25

So I don’t think that it was harassment, threatening;

26

it was certainly inappropriate.

27

THE COURT:

Well, what was it then, Counsel?

APP.65

21

1

Characterize it for me if you can.

2

3

ATTY. REILAND:

It was inappropriate conduct,

Your Honor, that was based off of his --

4

THE COURT:

Inappropriate --

5

ATTY. REILAND:

-- frustration of the situation,

6

his anger over being called a pedophile.

And I think

7

most people would be very angry.

8

outlet to express that is going on the air and doing

9

that.

Unfortunately, his

It wasn’t appropriate.

10

THE COURT:

All right.

11

ATTY. REILAND:

So --

Unfortunately, Attorney Pattis

12

wasn’t able to kind of control the situation at the

13

time.

14

walking it back, Your Honor.

15

16

The next day, he attempted to clear the air by

THE COURT:

So tell me when you say

inappropriate what you mean by inappropriate.

17

ATTY. REILAND:

18

should not have been done.

19

20

21

22

23

THE COURT:

Means it should -- probably

And what are you referring to,

though, when you say it shouldn’t have been done?

ATTY. REILAND:

Referring to Plaintiffs’ Counsel

at all.

THE COURT:

And you made a mention and I didn’t

24

pick this up from the filings or from the broadcast,

25

and it may be my mistake, but you made a mention, I

26

believe, just now that Mr. Jones was upset or angry,

27

I can’t remember what word you used, that he was

APP.66

22

1

called a pedophile.

I didn’t see that anywhere.

2

Tell me where that is.

3

ATTY. REILAND:

Well, certainly the impression

4

that he was to be portrayed as a pedophile, that

5

child -- or that somebody was attempting to frame him

6

for being a pedophile, because that’s clearly what

7

this malware attack was.

8

sending him emails with the hopes that he would open

9

it and then he would be set up as viewing those

10

images and possibly be framed for a crime.

11

THE COURT:

Somebody from the outside

But there’s nothing that I missed

12

that suggests that anyone involved in the case or not

13

involved in the case actually called him a pedophile.

14

I thought from the --

15

ATTY. REILAND:

Certainly not.

It was the

16

impression that he got from malicious parties sending

17

him these illegal images.

18

19

THE COURT:

Okay.

Anything further at this

time?

20

ATTY. REILAND:

21

THE COURT:

Nothing, Your Honor.

So I think the way to proceed on

22

this, if you don’t mind, is we take the recess now.

23

I think Counsel should take a look at that case.

24

then if he wants to have any further argument and

25

then I can hear from the plaintiffs as well as to

26

whether they want any further argument, and then I’ll

27

be prepared to rule.

And

APP.67

23

1

2

3

4

ATTY. BLOSS:

That’s fine.

on a couple of quick things, Your Honor?

THE COURT:

Is it something that you can do when

we come back when you have your opportunity to reply?

5

ATTY. BLOSS:

6

THE COURT:

7

8

9

Can I just follow up

Certainly, Your Honor.

Okay.

So why don’t we do that and

then we’ll reconvene at 2:00?

(THE COURT RECESSED AND RETURNED WITH THE

FOLLOWING)

10

THE COURT:

11

ATTY. PATTIS:

12

couldn’t miss.

13

THE COURT:

Attorney Pattis, you’ve joined us.

I heard there was a party I

All right.

So I think we left off,

14

I was going to give the Defense an opportunity if

15

they wanted to review the case I had mentioned and to

16

finish their argument, and then I would give Attorney

17

Bloss an opportunity.

18

ATTY. PATTIS:

My understanding, Judge, I was on

19

trial upstairs, and I got a report at the lunch

20

break.

21

consider sanctions immediately today, that the Court

22

had denied our motion to stay, and encouraged us to

23

review a case, which we have.

24

and accept your inherent authority over these

25

proceedings.

26

27

And it suggested that the Court was going to

And so I understand

I’m asking you not to impose a sanction of any

sort at this point.

I was present at the Infowars

APP.68

24

1

taping and sitting next to Mr. Jones, and was,

2

frankly, flabbergasted by the level of anger that he

3

saw.

4

whether that was anger or an act.

5

it was convincing.

6

I presume.

7

that twice I was trying to counsel my client about

8

Aristotle and his admonition on anger, that a wise

9

man is angry the right way at the right time at the

10

right person and by the right means.

11

And I understand you raised questions about

If it was an act,

And you have read the transcript,

You have seen the video.

You’ve seen

Mr. Jones is a conspiracy theorist.

He believes

12

that there are people out to get him.

13

what, there are.

14

Facebook because of his speech, from PayPal because

15

of his speech, he has difficulty with credit card

16

purchase because of his speech, and he’s been sued

17

because of his speech as to Sandy Hill (sic).

18

we’re in the shadow of Sandy Hill (sic) here, so he

19

knows he’s not popular in Connecticut, but he’s

20

entitled to speak.

21

And guess

He’s been de-platformed from

And

Now the speech that’s at issue here is

22

particularly ugly speech that was uttered on a public

23

airway on Friday night.

24

not threaten Chris Mattei.

25

name and it was uncomfortable and it was unpleasant

26

to behold, and I will concede that.

27

threat.

I sat right there and he did

He mentioned Mattei by

But there was no

I’ve litigated two threat cases all the way

APP.69

25

1

up to the United States Supreme Court unsuccessfully

2

seeking certiorari as to the Ed Taupier conviction.

3

And as you -- which was sustained by our State

4

Supreme Court.

5

exceptions to the First Amendment, and there’s some

6

split in the Circuits now about whether they are

7

discerned by means of a subjective or an objective

8

standard.

9

As you are aware, true threats are

An objective standard requires that the person

10

perceiving the comment would perceive it as a threat.

11

That Mr. Mattei did, I will accept at face value if

12

that’s what their pleadings say.

13

the language and you look at some of the reporting

14

this morning, I -- I sincerely hope that Mr. Jones

15

brings an action against the New York Times.

16

never threatened to put Mr. Mattei’s head on a pike,

17

and to suggest otherwise is a grotesque misreading of

18

the transcript.

19

THE COURT:

20

was harassment?

21

But if you look at

He

Would you agree or disagree that it

ATTY. PATTIS:

I don’t think it was harassment.

22

You can sue Alex Jones and accuse him of all sorts

23

of things, put your name on the pleadings, and have

24

those pleading -- hold press conferences, have

25

pleadings mysteriously appear on CNN the day after

26

they’re filed, and Mr. Jones is supposed to do what,

27

oh, we like sheep have gone astray.

If they want

APP.70

26

1

blood-knuckle litigation, they got it.

2

-

3

THE COURT:

4

ATTY. PATTIS:

5

6

But they’re -

How would you characterize it?

As an ugly outburst and an angry

outburst.

THE COURT:

How would you -- did you get a

7

chance to read the Maurice v Chester Housing

8

Authority (sic) case?

9

that short, I think, six- or seven-word email?

10

ATTY. PATTIS:

How would you characterize

Not even close.

Not even close.

11

That email was sexually tinged to a person in a way

12

that was designed to intimidate her at the core of

13

her being, raising questions about her sexuality and

14

things that this man may or may not have liked to do

15

with her.

16

THE COURT:

So you -- you find -- your position

17

is that that short email was intimidating; this --

18

whatever you want to call this, 20-minute tirade --

19

ATTY. PATTIS:

20

THE COURT:

I’ll call it a tirade.

-- rant, whatever you -- that was

21

not intimidating?

22

ATTY. PATTIS:

23

in a new line of work.

24

said it on the broadcast.

25

when you take on a person, you take on the person and

26

you take responsibility --

27

THE COURT:

If it was, Mr. Mattei should be

This is a business -- and I

This is a business where

But why didn’t -APP.71

27

1

ATTY. PATTIS:

2

THE COURT:

-- for the passions it involves.

Then why not plaintiff’s counsel in

3

the Maurice case, wouldn’t the same thing apply to

4

her?

5

work, but instead --

6

7

Why -- how -- she should be in a new line of

ATTY. PATTIS:

Well, Judge, in all due respect -

-

8

THE COURT:

-- the intimidating behavior --

9

ATTY. PATTIS:

In all due respect, if I ever say

10

to a woman you should sit on my face, and the Court

11

doesn’t see the distinction between that and what was

12

uttered here, there’s nothing I can do about the

13

argument.

That is just grotesquely different.

14

In this case, Mr. Jones has been held up to the

15

nation as a figure of public ridicule and contempt.

16

Is -- does he have to sit silently by?

Does he not

17

have an opportunity to respond in kind?

Does he not?

18

And you know, the First --

19

THE COURT:

20

ATTY. PATTIS:

21

22

Well, does that give him --- Amendment says -- the First

Amendment has protected -THE COURT:

Attorney Pattis, does it give him --

23

does it give him the right to accuse the opposing

24

counsel of planting child pornography?

25

ATTY. PATTIS:

26

THE COURT:

27

Of asking --

He did not do so.

-- for the metadata -- of asking for

the metadata so that he could -- so that the opposing

APP.72

28

1

2

counsel could plant the child porn?

ATTY. PATTIS:

He didn’t say those words, and I

3

defy you to find that in there.

4

that he has and I counseled him over and over again,

5

you don’t know that, I don’t know that, I don’t

6

believe that about Attorney Mattei.

7

cases against him for 20 years.

8

9

THE COURT:

That is a suspicion

I’ve litigated

Well, we’re not talking about what

you believe.

10

ATTY. PATTIS:

No, no.

But I was sitting right

11

there and I saw it.

12

eyewitness, and I’ve read the transcript again over

13

lunch.

14

Mr. Jones’s email.

15

that by -- in a conference call with the Justice

16

Department last week.

17

to do so?

A naïve litigant always demonizes their

18

adversary.

I tried to walk Jones back from that and

19

say, look, Mr. Mattei’s job is to take you apart, as

20

it is my job to raise questions and take apart the

21

people who’ve sued you.

I had the benefit of being an

Somebody put that -- that pornography into

It was not him.

Who?

And we were told

Who would have a motive

That’s what we do.

22

And people talk about restorative justice, we

23

have complex mediation programs because we know the

24

emotions get raw.

25

expected to roll with the punches, and sometimes

26

those punches are awkward and sometimes those punches

27

raise concerns.

And experienced litigators are

This was not a threat.

APP.73

29

1

I have -- it’s been intimated to me that there

2

may or may not be a criminal prosecution being

3

investigated as a result of that.

4

that is bring it on.

5

Brandenburg v Ohio test.

6

to be a true threat, it has to do more than be

7

chilling in its tone.

8

threat of immediate violence.

9

a whole, how do you go from this video to Mr. Mattei

10

running to court seeking sanctions?

11

scared?

12

come on.

13

My response to

This does not satisfy the

In order for an utterance

It has to be an imminent

And in the context as

What is he,

I mean, he’s a former federal prosecutor,

From Mr. Jones’s perspective, this is more

14

theater.

15

gotten involved in this case, it’s been code red, one

16

urgency after another by plaintiffs who waited until

17

the statute of limitations had expired as to most of

18

the claims, found a tenuous conspiracy theory to

19

reach back and keep it alive, and now trying

20

desperately to link some false utterance to a

21

commercial activity so they can run the same game on

22

the First Amendment that they ran on the firearms

23

case in Bushmaster.

24

on.

25

This is an opportunity -- from the day I’ve

Well, bring the criminal case

Let’s go.

It is not going to past First Amendment

26

scrutiny, and we think sanctions would be

27

inappropriate in this case.

APP.74

30

1

I spoke to Mr. Jones at the lunch hour to alert

2

him to the fact that the Court seemed inclined to

3

grant sanctions of some sort, and he was

4

flabbergasted by that.

5

personally think of Mr. Jones, he has a right to

6

speak.

7

this country, people said far worse.

8

they would encourage the tarring and feathering of

9

other people, and we didn’t lock them up for being

10

passionate.

11

I mean, whatever you may

When we had the days of the Penny Press in

They would --

Mr. Jones is a passionate speaker.

THE COURT:

So he has the right of free speech,

12

but -- and I understand you don’t agree that anything

13

that took place during that -- during the two

14

broadcasts was in any way harassment or threatening

15

or sought to intimidate, but you would agree that he

16

does not have the right based on Connecticut law and

17

I am sure law of other jurisdictions to threaten,

18

harass, or intimidate the counsel on the other side.

19

20

ATTY. PATTIS:

I don’t think there’s any

question that he did not, and it is a precious --

21

THE COURT:

I understand your position.

22

ATTY. PATTIS:

23

suggest otherwise.

24

THE COURT:

-- reading of this transcript to

It is too precious.

But in general, does a party have a

25

right under the First Amendment to threaten, harass,

26

or intimidate the lawyer on the other side?

27

my question.

That’s

APP.75

31

1

ATTY. PATTIS:

As a matter of law, no.

But what

2

the facts in this case mean are by no means clear.

3

How this Court can reach this -- and I mean, consider

4

some of the cases, just throwing them at random.

5

City of Claiborne Village, okay, a case where the

6

NAACP was boycotting white stores.

7

people outside, if any of you -- and excuse my

8

language -- if any of you cross this picket line, I’m

9

going to break your goddam neck.

10

injured.

11

was tried and convicted.

12

overturned.

13

tumultuous speech is protected unless it is

14

associated with an imminent act of violence.

And they said to

Somebody was

The speaker who was an NAAC (sic) organizer

That conviction was

Violent speech, our Court has held,

15

Another example --

16

THE COURT:

But just -- but talk about the

17

integrity of the process here and the functioning of

18

the Court and the judicial process and the Court’s

19

obligation.

20

law.

Focus on that as opposed to criminal

21

ATTY. PATTIS:

Well, you had asked about crimes

22

and so I defended.

Now I’ll shift to the next turf

23

that you give me an opportunity to -- you know, I

24

mean, I will understand the case, and I forget the

25

name.

26

at lunch?

27

What was the name of the case you had us read

THE COURT:

Maurice v Chester Housing Authority

APP.76

32

1

(sic).

Just came out a couple months ago.

That’s --

2

ATTY. PATTIS:

3

That’s all I’ll remember.

4

Court with an opportunity, a door through which it

5

could walk here.

6

and I don’t know what its status is on certiorari.

7

That was an unusual case because it was nonparty

8

participant.

9

engaged in speech that was -- was a potential civil

10

rights violation.

11

harassed the litigant, wanted her to sit on his face,

12

or words to that effect.

13

The Housing Authority case.

You know, it presents this

It’s an Appellate Court decision

But I would argue that in that case, he

I mean, he basically sexually

That -- that is different.

It is different to take to a quintessential

14

public forum and cry foul.

And from Mr. Jones’s

15

perspective, look, this is -- this is how he looks at

16

the world.

17

for metadata.

18

just happen to find a needle in a haystack, or as he

19

put it in his broadcast, a needle in a haystack in a

20

field of haystacks.

They pressed, they pressed, they pressed

They get it, and lo and behold, they

How convenient was that?

21

Now, from my perspective, it wasn’t that at all.

22

The other side probably had the resources to hire a

23

sophisticated data mining firm and it was found.

24

THE COURT:

So I understand you take the

25

position that nowhere in the transcript does Mr.

26

Jones claim that Plaintiffs’ Counsel asked for the

27

metadata so that they could plant the child porn.

APP.77

33

1

But assuming that that statement was somewhere in

2

there, would that be sanctionable behavior on these -

3

- in this matter for a --

4

ATTY. PATTIS:

I think it might be a defamatory

5

comment, you know, suggesting that they engaged in

6

odious conduct.

7

how that affects the administration of justice.

8

Don’t be played for a fool here, Judge.

9

I’ve gotten involved in this case, the Sandy Hook

10

plaintiffs have done nothing but try to leverage a

11

discovery problem into a default of one sort or

12

another so that this Court or any Court can avoid

13

addressing this case on the merits.

14

on the merits they’d fail.

15

about intentional emotional distress, not

16

sustainable.

But for the life of me, I don’t see

From the day

That’s because

Snyder v Phelps talks

17

The only claim they have and the reason they

18

pressed so hard on this ridiculous marketing data

19

theory of theirs is they want to associate knowingly

20

false comments with the sale of commercial products.

21

That’s what this case has come down to.

22

at 7:35, I sent an email over with a complicated

23

group of Google Analytics, unknowing whether you had

24

yet ruled on our motion for clarification.

25

Last night

We are anxious to litigate the merits of this

26

case.

But the Court shouldn’t be used in the crisis-

27

of-the-week club by the plaintiffs in an effort to

APP.78

34

1

avoid deciding issues that are at the core of this

2

republic.

3

in Connecticut where we all know people who suffered

4

tragically as a result of Sandy Hook.

5

Mr. Jones today, who is it going to be tomorrow?

6

what sort of speech are we going to prohibit because

7

it makes us uncomfortable and we don’t like it?

8

Mr. Jones is an easy scapegoat, especially

But if it’s

And

If Mr. Mattei truly believes that he can

9

persuade a law enforcement official that to truly and

10

with integrity think that there’s a sustainable cause

11

of action in a Criminal Court, let’s have it.

12

client is prepared to address those allegations in

13

any court any time.

14

Judge, maybe you ought to have him come up here,

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