I’ve discussed the case before — it raises a claim that the columnist’s First Amendment rights were violated under a state law (Conn. Gen. Stat. Sec. 31-51q) that purports to apply that amendment to private employers — but was intrigued by the theory that the case could resolve issues of "first impression" in the state.
One of the arguments brought up by the Courant’s attorneys in a motion is the fact that the newspaper has its own First Amendment rights to consider.
That theory is not new in First Amendment jurisprudence (First Nat’l Bank v. Bellotti, 435 U.S. 765, 776-77, 784 (1978)) but is still being developed under Connecticut’s state law.
One of the state cases both parties will end up focusing on is Cotto v. United Technologies, Inc., 251 Conn. 1 (1999). In that case, the Connecticut Supreme Court skirted this issue. In footnote 5 of the decision, the court concluded it need not decide the issue of competing rights. But it went on to state:
we do not dispute the possibility that circumstances may arise when the rights of an employee under Sec. 31-51q may conflict with the employer’s own free expression rights. If and when that case does arise, we will be required to resolve any such conflicts…
Various concurring decisions in that case also warned about the possibility of competing rights.
Of course, there are other cases that could get up to the Connecticut Supreme Court before then as well, but with a paucity of cases discussing this particular state law, it’ll be interesting to add this one to the mix.