A A A 
LE (3 A 

February 13, 2020

Via Electronic and First Class Mail
Brian D. Festa, Es .

    

Re: Jolly CT Freedom Alliance adv. 

Dear Attorney Festa,

Please be advised that oru' ?rm has the pleasru?e of representing
relative to a Notice to Cease and Desist you sent on behalf of
your rents Down and CT Freedom Alliance, LLC . Oru' clients decline yoru' request

to retract and will neither cease nor desist from exercising their First Amendment rights.

   

As we see yoru? primary occupation is with the CT CHRO, oru? presrunption is that
defamation law is outside yoru? usual practice. Allow us, then, to explain why yoru? letter
is de?cient and what the most likely judicial outcome would be.

1.0 Your Clients have No Valid Claim

Under onnecticut law, in order establish a prima facie case of defamation? a party
?must demonstrate that: (1) [the defendant] published a defamatory statement; (2) this
defamatory statement identified [the plaintiff] to a third person; (3) this defamatory
statement was published to a third person; and (4) [the plaintiff s] reputation suffered inj my
as a result of the defamatory statement.? Simms v. Seaman, 308 Conn. 523, 547-48 (2013),
quoting Gambardella v. Apple Health Care, Inc, 291 Conn. 620, 627-28 (2009). For a
statement to be defamatory, it must be false. See Devone v. inley, No. 
(CSH), 2014 US. Dist. LEXIS 36356, at *24 (D. Conn. Mar. 20, 2014). Oru? clients?
statements are not false.

A ?defendant will not be held liable as long as the statements at issue are substantially
true.? Woodcock v. Journal Publishing Co., Inc, 230 01111. 525, 554 (1994). ?Contrary
to the cormnon law rule that required the defendant to establish the literal truth of the
precise statement made, the modem rule is that only substantial truth need be shown to
constitute the justi?cation . . . [i]t is not necessary for the defendant to prove the truth of
every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel
is true, he need not justify statements or cormnents which do not add to the sting of the

 

100 Pearl Street, 14*" Floor, Hartford, Connecticut 06103

jmw@rondozzo.com 702.420.2001

Jolly & CT Freedom Alliance adv.
Page 2 of 5

charge or introduce any matter by itself actionable.” Mercer v. Cosley, 110 Conn. App.
283, 304 (2008), citing Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107,
112-13 (1982).
Though you declare the statements in the attachments to be defamatory, the only purported
falsehood you assert is that “they falsely allege that [your] clients have disseminated false
information.” To be clear, the attachments only address language where our client
indicated that the CT Freedom Alliance posted “inaccurate information…regarding
proposed legislation”, that the “CT Freedom Alliance, a huge antivax group cochaired by
Dawn Jolly in Ridgefield, is misrepresenting the legislation”, and that Ms. Jolly “uses
retracted studies and propaganda to support her claims”. These are not actionable in libel.
1.1

Your Clients Disseminated False Information

Our clients’ statements are substantially true. For example, Ms. Jolly shared on Facebook
(and has since apparently spoliated) the article at https://anyavien.com/no-flu-shots-useelderberry-syrup-99-effective-for-h5n1/ , claiming “More effective than your damn flu
shot”. We have a copy, even though it does not appear currently visible on her public
Facebook page. The linked article makes no such claim. Instead, it links to the article at
https://www.israel21c.org/study-shows-israeli-elderberry-extract-effective-against-avianflu/ , where the author of the study at issue actually “insists that those at risk continue to
take their flu jabs.” Thus, Ms. Jolly has disseminated inaccurate information.
Similarly, in what appears to be another spoliated post, Ms. Jolly shared on Facebook a
post purporting to assert that autism is not genetic due to an absence of autistic parents and
grandparents. The purported connection between vaccines and autism arises from Andrew
Wakefield’s discredited 1998 publication in The Lancet, which has been retracted. See
Wakefield, et al., RETRACTED: Ileal-lymphoid-nodular hyperplasia, no-specific colitis,
and pervasive developmental disorder in children, 351 THE LANCET 637 (Feb. 28, 1998).
Thus, Ms. Jolly uses retracted studies to support her claims.
As to proposed legislation, Ms.
shared a letter from Connecticut Commissioner of
Public Health Renée D. Coleman-Mitchell, available at https://www.wtnh.com/wpcontent/uploads/sites/100/2019/09/20190916-Ltr-on-vaccines-from-CommissionerColeman-Mitchell.pdf , which recommended that the General Assembly eliminate the
religious exemption from vaccination for school attendance. In contrast, on February 8,
2020, your client posted a call to action regarding the legislation, at
https://www.facebook.com/da.jo.127/posts/10221708827618739 and posted an image,
purporting to represent that the decline of deaths from diseases prior to the introduction of
vaccines evidences that vaccination is unnecessary, citing to the American Academy of
Pediatrics, December 2000. An actual review of the AAP article in question states that,

 Jolly & CT Freedom Alliance adv.
Page 3 of 5

due to vaccines, “[t]he reductions in vaccine-preventable diseases, however, are
impressive[,]” setting forth that, due to vaccination, deaths from diphtheria, pertussis,
measles, Haemophilus influenzae, tetanus, and poliomyelitis have been virtually
eliminated. Guyer, et al, Annual Summary of Vital Statistics: Trends in the Health of
Americans During the 20th Century, 100 PEDIATRICS 1307, 1315 (Dec. 2000). Simply put,
the gist and sting of our clients’ statements are substantially true. Please note, although we
are primarily addressing the first prong under Simms, supra, the other elements are not
conceded.
1.2

Your Letter is Insufficient

Your letter purports to request a retraction under C.G.S. § 52-237. As the statements are
not libelous, our clients have no obligation to make any retraction. Further, your letter is
vague and insufficient under C.G.S. § 52-237. “[A] complaint for defamation must, on its
face, specifically identify what allegedly defamatory statements were made[.]” Chertkova
v. Connecticut General Life Ins. Co., Docket No. CV-98-0486346-S, 2002 Conn. Super.
LEXIS 2348 (New Britain Sup. Ct. July 12, 2002, Berger, J.), aff'd, 76 Conn. App. 907
(2003). There is no reason to suggest the statute would be interpreted any differently. We
have been guessing as to what it is, exactly, that you are claiming is libelous, i.e. the
supposedly false information you claim our clients disseminated. You cannot merely
present lengthy statements and expect us to determine what it is that you are claiming is
false. If you mean the statements identified above, they are substantially true. If you mean
others, please identify them. We will review them, of course, though we suspect you will
be wrong as to whether they are actionable.
1.3

The Statements are First Amendment Protected Speech

Our clients’ statements are constitutionally protected. Your clients are limited purpose
public figures. Public figures must prove “actual malice” to recover for claims based on
speech. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Gertz v. Robert Welch,
418 U.S. 323 (1974). To be deemed a limited purpose public figure, a plaintiff must
have: “(1) successfully invited public attention to [its] views in an effort to influence others
prior to the incident that is the subject of litigation; (2) voluntarily injected [itself] into a
public controversy related to the subject of the litigation; (3) assumed a position of
prominence in the public controversy; and (4) maintained regular and continuing access to
the media.” Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-37 (2d Cir. 1984). In their
quest to organize, fundraise, and legislate, your clients have invited attention, voluntarily
injecting themselves, become prominent, and have media access.
Notably, on December 4, 2019, your clients announced that Ms. Jolly is seeking to register
as a lobbyist with the Connecticut Office of State Ethics and is pursuing registration as a

 Jolly & CT Freedom Alliance adv.
Page 4 of 5

501(c)(4) organization in order to lobby. Ms. Jolly had previously advocated that the
Public Health Committee reject H.B. 7199. See Jolly, Dawn, Letter to CT General
Assembly, Public Health Committee (Mar. 13, 2019). Your clients have sought media
attention on the issue. See, e.g., Raff, Susan & Lank, Olivia, “Lawmakers Pushing Bill to
Remove Religious Exemptions for Vaccination of Children”, WFSB (Mar. 13, 2019);
Carlesson, Jenna, “Health Officials Say Connecticut Child has Contracted Measles”, CT
MIRROR (Oct. 25, 2019); and Staff, “Department of Public Health Confirms 4th Case of
Measles in the State this Year”, FOX61 (Oct. 25, 2019). They are, therefore, limited
purpose public figures.
Thus, even if our clients made false statements, your clients must meet a heightened
standard and “prove that the statement was made with actual malice…with actual
knowledge that it was false or with reckless disregard of whether it was false.” Fuller v.
Day Publishing Co., No. 030565104, 2004 Conn. Super. LEXIS 376, at *14-15 (Super. Ct.
Feb. 23, 2004) aff'd, 89 Conn. App. 237 (2005), cert. denied 275 Conn. 921 (2005) (limitedpurpose public figures)). “The state of mind that constitutes actual malice has been defined
as with knowledge that it was false or with reckless disregard of whether it was false or
not.” Kelley v. Bonney, 221 Conn. 549, 580, (1992) (internal quotation marks omitted).
In brief, there is no reasonable expectation that your claims will be met with any success.
There will be no damages awarded. There will be no injunctive relief. And, your threat of
a temporary restraining order plainly shows you are unfamiliar with the well-established
rule that “THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR
RESTRAINT!”. Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing
SOBCHAK, W., THE BIG LEBOWSKI, 1998)).
2.0

Your Client will Pay Our Fees

Should you proceed down the path of litigation and actually file suit, you should also advise
your clients of their liability. First, they will have the misfortune of incurring the Streisand
Effect. See Guttenberg v. Emery, 26 F. Supp. 3d 88, 95 (D.D.C. 2014) (describing “the
dilemma faced by plaintiffs in defamation cases, who often end up publicizing defamatory
statements much more than if they had not filed a lawsuit.”); see also, Masnick, Michael,
“Since When is it Illegal to Just Mention a Trademark Online?” Techdirt (Jan. 5, 2005)
available at https://www.techdirt.com/articles/20050105/0132239.shtml (coining the
term). It is unlikely your clients have suffered any injury to their reputation on account of
our clients’ statements. Your clients are apt to suffer far greater injury to their reputation,
to the extent they might not already be libel proof, on account of their own statements and
tactics should they turn to litigation and bring the frivolous suit you propose.

 Jolly & CT Freedom Alliance adv.
Page 5 of 5

Second, your clients will be liable to ours under the Connecticut Anti-SLAPP statute,
Conn. Gen. Stat. § 52-196a. Dismissal will be swift. Our clients’ statements were all
communications in public fora on public health, a matter of public concern. And, you lack
probable cause under law, as set forth above, to bring your threatened libel claim. With
those elements met, the statute mandates that our clients will be awarded their costs and
reasonable attorneys’ fees. We would be happy to provide you with a list of cases in which
we have recovered large fee awards in SLAPP suits so that you may properly advise your
clients as to your proposed ill-fated adventure in litigation.
3.0

Stop this Nonsense

Your client states, on its website, “[w]e pledge to never engage in censorship, groupthink,
or controlled messaging.” See https://www.ctfreedomalliance.org/about-us . Similarly, on
November 22, 2019, your client stated on Facebook that it is “the arch nemesis of
censorship and deception.” And on November 8, 2019, your client stated that it is an
organization “where every voice is heard, and not one is louder than the others.” Your
threat directly contradicts these statements. It is an attempt, through bullying, to censor
our clients. It is an attempt to control messaging, to thwart the ability of anyone who
disagrees with your client to be heard. It promotes but a single ideology, which necessitates
groupthink.
In the immortal words of Master Yoda, “Stop it Now”. Bad Lip Reading, “SEAGULLS!
(Stop It Now)” (Nov. 25, 2016) available at https://www.youtube.com/watch?v=U9tslLl30E .
Thank you for your attention to this matter.
Sincerely,

Jay M. Wolman
Cc: Marc J. Randazza