Vermont high court sides with newspaper in defamation suit

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MONTPELIER — Five days before the 2016 general election, The Northfield News published a letter to the editor about a state House candidate's criminal history, academic troubles and "disruptive behavior" at local businesses.

That candidate, Democrat Gordon Bock, lost the race, and subsequently sued the newspaper and the letter's author.

Now, more than a year after the election, the Vermont Supreme Court has ruled that Bock's defamation lawsuit cannot move forward. That's partly because the letter's allegations had "reasonable factual support," but it's also because the justices consider the missive an exercise in free speech.

"The character, behavior and qualifications of a candidate for elective office constitute a 'public issue'" under the law, and are therefore considered "protected speech," three justices wrote in an entry order dated Dec. 1.

Bock, a prisoners' rights advocate with Vermont's chapter of Citizens United for the Rehabilitation of Errants, campaigned last year for the Washington-1 House district.

The Northfield resident made criminal justice reform a centerpiece of his campaign and said that he "speaks openly of past mistakes that led to his being incarcerated." He said his faith and a state domestic abuse counseling program were key components of his rehabilitation.

On Nov. 3, 2016, The Northfield News ran a letter that brought up Bock's criminal past, which included domestic assault and a related shooting. On the same page was a letter from Bock acknowledging those incidents.

"I own my mistakes. I have learned from them and grown from them," he wrote. "My biggest regret, and one that I cannot undo or reverse, is that I hurt people before I made positive changes in my life. But making positive changes and choices is what I shall continue to do."

Beneath Bock's letter was another letter written by William S. Smith of Northfield. Smith mentioned Bock's criminal record but went further: He said the candidate had been "kicked out" of Vermont Law School for cheating and also had been "removed from local businesses for disruptive behavior" earlier in 2016.

"I know people in town who are afraid of him," Smith wrote. "In my opinion, he is not someone who should be elected to represent Northfield."

Less than a week later, Bock came in last in a race among four candidates for two legislative seats. He finished well behind two incumbents who retained those seats - Rep. Anne Donahue, R-Northfield, and Rep. Patti Lewis, R-Berlin - and also was edged out by Progressive Democrat Jeremy Hansen.

Bock then sued the newspaper and Smith, taking issue with the writer's statements about Vermont Law School and being removed from local businesses.

Both defendants sought to have the suit thrown out under Vermont's "anti-SLAPP" law. The abbreviation stands for "strategic lawsuit against public participation," and it allows defendants in a free speech case to file a special motion to strike a lawsuit.

That statute protects several forms of expression including "any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public."

A Superior Court judge in Washington County sided with the newspaper and Smith in tossing out the suit. Bock then appealed to the state Supreme Court, but the three justices considering the case now say they can find "no error" in the lower court's ruling.

The justices agree that the suit involved the defendants' "exercise, in connection with a public issue, of the right to freedom of speech." The justices reiterate the importance of such speech within the context of a political campaign.

They also point out that Bock had the burden of showing that the letter's statements were "devoid of any reasonable factual support." The candidate failed to do that, the court's order says.

A police report produced by Bock, which details a conversation between Smith and the Northfield police chief, says Bock was not deemed a "physical threat." But that report also acknowledges that some of the incidents Smith wrote about had occurred, the Supreme Court found.

The justices note that Smith also produced - though he was not required to do so - documents supporting his statements about Bock. That included police reports about disturbances at a public pool and a sandwich shop, as well as a 1992 Burlington Free Press article quoting a prosecutor who said Bock had been expelled from Vermont Law School.

The justices declined to consider another issue raised by Bock - an allegation that Vermont's anti-SLAPP law is unconstitutional. That's because Bock failed to raise that issue with the lower court.

Mike Faher reports for the Brattleboro Reformer, VTDigger, and The Commons. He can be contacted at mfaher@vtdigger.org.

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