Attorneys Steven Kelly and Anne McKenna Secure Victory in Major First-Amendment Decision
BALTIMORE, MD — A state supreme court has strengthened important First Amendment protections for crime victims at the urging of Steven J. Kelly, a renowned victims’-rights attorney at the law firm of Silverman Thompson. In its decision of Smolinski v. Gleason, the Connecticut Supreme Court held, as argued by Mr. Kelly and Silverman Thompson partner Anne T. McKenna, that the U.S. Constitution barred tort liability for the placing of certain “missing person” flyers on public roadways.
The appeal concerned a $52,000 verdict in favor of former girlfriend, Madeleine Gleason, who sued the family of the victim, Billy Smolinski, who went missing in 2004. The Smolinskis began placing missing-person flyers in nearby towns that included Billy’s name and picture and offered a reward for information. Some of the flyers were placed near Ms. Gleason’s house and along roads on which Ms. Gleason drove a school bus. After learning that Ms. Gleason was defacing and tearing down the posters, the Smolinskis filmed her in the act and gave the tape to a local news station, which aired the footage. That led to Ms. Gleason’s lawsuit and the verdict by the trial judge in her favor. After Mr. Kelly — who, earlier this year, was appointed by Governor Hogan as the chairman of the Maryland State Board of Victim Services — learned of the troubling outcome, and considered the disturbing implications for all victims of crime, he agreed to represent the family in the appeal at no cost and joined with Ms. McKenna for the lengthy legal battle.
Although Ms. Gleason argued that the flyers — which did not identify her — were harassing and intended to cause her emotional distress, Mr. Kelly convinced the Supreme Court that, because the notices were neutral in content, related to a public concern, and made in a public fora, the judgment violated the Smolinskis’ constitutional free-speech rights.
As the Supreme Court recognized, when missing-person posters are used in this way, they lawfully request information to assist investigation into crime. The First Amendment right to engage in such speech would be infringed if families could be forced to pay large money damages as a result. The court’s ruling is not only a victory for the Smolinski family but it also has national implications for crime victim advocates and groups dedicated to solving crime and finding missing persons. Had the lower court’s ruling been upheld it would have had devastating consequences. Anyone posting flyers about their missing loved one could have opened themselves up to a defamation case if someone was bothered by it.
In addition to the First Amendment ruling regarding missing-person flyers, the Supreme Court also agreed with Mr. Kelly’s argument that Ms. Gleason had not sufficiently proven defamation given that the Smolinskis made statements to a public audience on a matter of public concern. The case will now be remanded for a new trial in light of the Supreme Court’s decision.
Mr. Kelly devotes his practice to defending the rights of victims in criminal and civil proceedings. He is a nationally-recognized expert on restitution and victim compensation and helped lobby Congress to pass the Crime Victims’ Rights Act of 2006.