Annulled Conviction Renders Campaign Statement False

The New Hampshire Supreme Court has reinstated a dismissed defamation action and reversed summary judgment in an action brought for statements contained in a flyer in a political campaign

The record supports the following facts. At all times relevant to this appeal, the plaintiff was an attorney in the State of New Hampshire. In 2009, the plaintiff was convicted of theft by extortion, which was later annulled pursuant to RSA 651:5, X. As a result of the conviction, the plaintiff was temporarily suspended from the practice of law, but he was not disbarred.

In 2018, the plaintiff was “the Republican nominee for New Hampshire State Senate District 9.” During the course of the plaintiff’s campaign, the defendants “contracted with Bridge Communications to prepare mail pieces for certain state senate candidates,” including the plaintiff’s opponent for the state senate seat. Bridge Communications, with the aid of an NHDP staffer, prepared a political message that was distributed by mail (the mailer or flyer). The mailer contained the message:

THE WRONG KIND OF CONVICTIONS.

[The plaintiff] targeted woman-owned businesses for extortion. [He] was charged by Republican Attorney General Kelly Ayotte, convicted by the state of New Hampshire for “theft by extortion” and disbarred.

Defamation

we conclude that the trial court erred in finding that the statement on the flyer was true. As a matter of New Hampshire law, a true and accurate characterization of the conviction had to include the fact of the conviction’s annulment. Thus, failure to include the fact of the conviction’s annulment renders the statement false as a matter of law. See RSA 651:5. Accordingly, we reverse the trial court’s dismissal of the plaintiff’s defamation claim.

Disbarred v. suspended

The trial court found that the term “disbarred” was substantially true, because “it is not apparent that Plaintiff’s reputation would have fared better if Defendants had used the word ‘suspended’ as opposed to ‘disbarred,’ as the reader’s takeaway remains the same.” We disagree. The difference between the terms “suspended” and “disbarred” is significant.

A concurrence and dissent in part

The legislature cannot alter the metaphysical truth of the plaintiff’s past — for purposes of the First Amendment, the statement that the plaintiff was convicted for theft by extortion both was, and is, true.

Materiality

it is the plaintiff’s burden to show that a statement is not only false, but “materially false.” Brokers’ Choice of America, 861 F.3d at 1107. “To be material, an alleged falsehood must be likely to cause reasonable people to think significantly less favorably about the plaintiff than they would if they knew the truth.” Id. (emphasis added; quotation omitted). Here, the misstatement, which used the wrong label in referring to the degree of one of the consequences of the plaintiff’s criminal conduct, was not materially false.

The underlying criminal case involved litigation threats relating to the disparate age and gender pricing of haircuts.

Plaintiff’s demand letter

I demand that you immediately cease your unlawful practice of charging for haircuts based upon age and gender.   Should you not comply I will be forced to file a complaint with the State Commission for Human Rights while reserving all rights to remove and file in Superior Court.   In addition, I demand payment in the amount of $1000 in order to avoid litigation․  I believe $1000 is a fair amount as it is the minimum that would be awarded for an unfair trade practice alone.   You have ten (10) days to comply․  Should you fail to comply additional steps will be taken including filing with the State Commission for Human Rights and potential removal to Superior Court.   If such action is necessary I will seek all remedies available including but not limited to an injunction, damages for discrimination, damages for the unfair trade practice, ill-gotten gains, punitive damages, attorney fees and costs.   If you object or otherwise wish to discuss the above matter you may have your attorney contact me.

The spouse of the owner of Claudia’s Signature Salon had responded to plaintiff’s demand letter

Nardi subsequently contacted the New Hampshire Attorney General’s Office, and it was determined that an investigator would attend the settlement meeting posing as [owner] Lambert’s business partner.   At the settlement meeting, the defendant again stated that he did not have a client.   He further indicated that he, personally, would keep the $500 he received from Nardi, and that he was currently in negotiations with other attorneys in response to similar letters he had sent out.   The investigator executed the settlement agreement, providing $500 to the defendant.   After taking possession of the $500, the defendant was arrested and charged with theft by extortion.

The appellate decision is linked here.

From the recommendation of the Professional Conduct Committee (issued while the criminal appeal was pending)

At the trial, Mr. Hynes conceded that, in addition to the letter to Claudia’s Hair Salon, he had forwarded 18 other similar “cease and desist/demand” letters, with demands ranging from $1,000.00 -$2,500.00, to hair salons in New Hampshire. The aforementioned letters to Salon Aquavit and Bellaviso Salon and Spa are two such other letters.

The New Hampshire Attorney Discipline web page does not reflect any final discipline was imposed.

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(Mike Frisch)