Gregory Smith, a professor of political science and philosophy at Trinity College, a private liberal arts college in Hartford, Connecticut, circulated a letter criticizing Trinity policies. The letter alleged that Trinity was creating a new form of racism and classism at Trinity, with a new form of original sin being loaded on white, suburban students. Smith was also critical of Trinity’s “cultural houses,” which he described as “tribal enclaves,” opining that houses that integrate students by interest and academic subject matter would be more promising and lead to less division and hostility. Smith sent this letter to his fellow faculty members, but some students also received access to the letter in March 2019.
In March 2019, several undergraduate students at Trinity created the Churchill Club and applied for formal recognition and funding from the Trinity Student Government Association (SGA). Smith served as the faculty advisor. The club was “inspired” in part by the Churchill Institute, which is a non-profit corporation founded by Smith that focuses on the study of Western civilization, philosophy, and tradition. In connection with the club’s application for formal recognition, the club’s student representatives, including N.E., appeared before the SGA to answer questions. Student protestors attended the hearing to protest the club’s formal recognition.
On April 1, 2019, a Trinity student newspaper published its annual satirical issue, which featured an article entitled “SGA Considers Fascist Society Approval.” Around April 10, 2019, a group of four students (Defendants) posted flyers around campus, featuring the Churchill Institute’s logo, a photograph of Smith, and a quote from a Facebook post by Smith: “the new racism is every bit as ugly as the old.” The Defendants also posted nearly identical flyers featuring a photograph of N.E.
Thereafter, N.E. and Smith filed suit against the Defendants, alleging libel and negligent infliction of emotional distress. The Defendants filed a motion to dismiss under the anti-SLAPP statute, arguing that the Plaintiffs’ claims were based on the Defendants’ exercise of the right of free speech and right of association in connection with a matter of public concern under the First Amendment.
The trial court denied the Defendants’ motion to dismiss and noted that the Defendants failed to meet their burden because their communications were not made in a public forum, which is required under the anti-SLAPP statute. The trial court concluded that Trinity, as a private college, was not a state actor for the purposes of triggering first amendment protections under the U.S. Constitution. As for the Defendants’ right of association claim, the trial court noted that the Defendants’ conduct did not involve any governmental interference with private or intimate relationships nor did it involve any governmental interference to engage in protected speech because Trinity was not a public forum. The Defendants appealed, and the Court of Appeals transferred the case to the Connecticut Supreme Court for ruling on the issue.
The Supreme Court considered whether the Defendants had a colorable claim entitling them to protection under the anti-SLAPP statute.
The Defendants argued that the controversy concerning the club’s recognition, on which the flyers commented, was a concern to the Trinity community and the surrounding local community. The Defendants also argued that their right of association claim is colorable because the conduct does not need to take place in a public forum or impose a state action to fall under the anti-SLAPP statute, as there is no express language imposing these requirements.
The Supreme Court agreed with the Defendants. Posting the flyers around campus after the protests against the club’s recognition began constituted a communication among and with other students on campus, who were joining together to pursue a common interest, namely preventing the club from being recognized and funded by the SGA, on a matter of public concern. The topics related to race relations and racial discrimination, as the flyers contained Smith’s previous remarks on race and protested the club’s recognition because of its affiliation with Smith’s remarks. While the Supreme Court concluded that the right of association may not ultimately have merit, the other claims were colorable and therefore the trial court’s denial of the anti-SLAPP motion was appealable. The case was transferred back to the Court of Appeals to evaluate the anti-SLAPP motion.
Smith v. Supple (Conn., May 2, 2023) 2023 WL 3214149.
Note: Although this case occurred in Connecticut, this case serves as a reminder that in California, the state legislature has determined that all high school students, including those in private schools, have the same free speech rights as they would have outside of school.