Union Leader, op-ed writer didn't defame man over critical race theory, says NH Supreme Court

Sep. 4—The state Supreme Court ruled that a lower court was correct in dismissing a complaint alleging defamation and invasion of privacy-false light against the Union Leader Corp. and the writer of an op-ed piece regarding critical race theory.

"Reading the op-ed as a whole, we agree with the trial court that the op-ed merely expressed the author's political opinions and beliefs that he individually held about the plaintiff and others not based on any undisclosed defamatory facts," said the 15-page ruling released Wednesday.

Daniel Richards, the father of two children in Hanover schools, submitted public testimony in favor of a bill that supported legislation that would prohibit "New Hampshire schools from teaching children that they are 'inherently racist, sexist, or oppressive, whether consciously or unconsciously,' " according to the ruling.

On June 18, 2021, the Union Leader published an op-ed written by Robert Azzi, titled "White supremacists reveal content of their character" and named Richards and others.

In September 2021, Richards filed a court complaint, alleging that the publication of the op-ed had lowered his reputation in his community, threatened his business interests and may negatively influence employees within his company.

"After reviewing the challenged statements, the trial court concluded that each amounted to non-actionable opinion, not premised on any undisclosed defamatory facts, and dismissed the claim," the Supreme Court ruling said.

"In doing so, the trial court declined to take judicial notice, as requested by the defendants, of the debate surrounding 'Critical Race Theory, as well as the debate surrounding what is meant by white supremacist or white supremacy,' concluding that it did not need to do so in order to make its decision," the Supreme Court wrote

Richards appealed.

"Although we have not had cause to consider whether characterizations like the terms 'racist' or 'white supremacist' can be considered actionable under a theory of defamation, numerous other jurisdictions have considered the question," the high court wrote. "We find the reasoning of these cases persuasive."

Union Leader attorney Kathleen Sullivan said: "We're gratified that the Court upheld New Hampshire's well established right to free expression of socio-political opinions in this public, contentious, heated debate on matters of great social and political concern."

An attorney for Richards didn't immediately return a message for comment.

Three justices made up the majority.

Justice Melissa B. Countway concurred in part and dissented in part. She wrote it wasn't clear what facts defendant Azzi relied upon to support his assertion that the plaintiff disseminated white supremacist ideology.

"In light of the foregoing, I would reverse and remand the case for further proceedings, including a determination of whether the plaintiff is a public figure, in which case he would be required to prove, not only that the stated or implied assertions of fact are false, but also that the statement was made with actual malice," Bassett said.

"These further proceedings would not undermine the strong societal interest in robust discussion of public issues, but would better balance that interest with the plaintiff's reputational interests and his right to the protection of his own good name ...," she wrote.

The American Civil Liberties Union of New Hampshire and others filed a friend-of-the-court brief in 2022 saying Azzi's alleged defamatory statements constitute expressions of opinion protected under the First Amendment and the state constitution.

"Today's ruling is a victory for free speech and freedom of press rights in the Granite State and affirms that defamation law may not be used to punish ordinary people for debating matters of public concern in a public forum like the Union Leader opinion section," said ACLU of New Hampshire Legal Director Gilles Bissonette. "People and the press — despite pressure and intimidation from those with financial resources who vehemently disagree with them — have a First Amendment right to voice their opinion without fear of litigation from those who seek to stifle criticism."