Background
Saifullah Khan, a former Yale University student, was accused of rape by a fellow student and charged with sexual assault. He was acquitted at trial but subsequently expelled by Yale through disciplinary proceedings. Khan sued his accuser in federal court for defamation and tortious interference. The case was certified to the Connecticut Supreme Court on questions of Connecticut law regarding absolute immunity and quasi-judicial proceedings. While the case was pending, twelve nonprofit organizations and a law firm filed an application to appear as amici curiae and attached a proposed brief. The brief stated: “When Jane Doe was in college, the plaintiff raped her” and referred to Khan as “Jane Doe’s rapist.” Khan objected, arguing the statements constituted abuse of the litigation privilege. The Supreme Court initially denied the application but allowed defendants to refile with the challenged language removed. Khan then sued in Superior Court, alleging defamation, false light, negligent infliction of emotional distress, and abuse of process.
The trial court dismissed the action, finding the litigation privilege barred all claims and also granted anti-SLAPP motions. Khan appealed, arguing that the litigation privilege does not apply to persons seeking to appear as amici curiae and that, even if it does, the challenged statements were not pertinent to the Supreme Court proceedings.
The Court’s Holding
The Connecticut Appellate Court held that the litigation privilege—which grants absolute immunity to participants in judicial proceedings—extends to persons seeking to appear as amici curiae. The privilege protects “all participants in judicial proceedings” and applies “to every step of the proceeding until its final disposition…including to statements made in pleadings or other documents prepared in connection with [the] proceeding.” Because the proposed amicus brief was attached to defendants’ application for permission to appear as amici, which the rules of practice expressly contemplate, defendants were participants in the proceeding entitled to absolute immunity.
The court rejected Khan’s argument that statements in a proposed—rather than final—brief should not receive protection. The litigation privilege applies to all documents prepared in connection with judicial proceedings, and applications to file pleadings, accompanied by proposed pleadings, are steps in the proceeding triggering the privilege. The court emphasized that extending the privilege to amici serves important policy objectives: it ensures candor and prevents self-censorship among amici and their attorneys, protects clients whose legal advisors should not fear retaliatory litigation, and promotes robust participation in the appellate process—a process that benefits from diverse perspectives and information. The court also held that statements in the proposed brief were pertinent to the certified questions before the Supreme Court, as Jane Doe’s allegation and Yale’s expulsion decision were central to both the federal litigation and the Supreme Court proceedings.
The trial court properly dismissed the abuse of process claim because Khan failed to identify specific misconduct intended to cause injury outside ordinary litigation but instead based his claim on harm caused by the defendants’ words within the litigation context. The court affirmed dismissal of republication claims on the ground that the proposed brief was a publicly filed court record protected by both the litigation privilege and the fair report privilege. However, the court erred in addressing the anti-SLAPP motions after determining it lacked subject matter jurisdiction—once the litigation privilege barred the claims, the action should have been dismissed without further proceeding.
Key Takeaways
- The litigation privilege extends to persons seeking to appear as amici curiae, not merely formal parties to a lawsuit, protecting statements made in proposed amicus briefs attached to applications for permission to appear.
- Statements in proposed amicus briefs are protected even before permission to appear is formally granted, so long as the application complies with applicable rules of practice.
- The litigation privilege applies to statements made “in connection with” judicial proceedings, which includes preparatory documents directed toward the goal of the proceeding, not only formal pleadings filed after permission is granted.
- Extending absolute immunity to amici and their attorneys serves vital policy interests by preventing chilling effects on participation, encouraging candor, and protecting the integrity of amicus briefing as part of the appellate process.
- A trial court that determines the litigation privilege bars a claim on a motion to dismiss for lack of subject matter jurisdiction should not proceed to address anti-SLAPP motions on the merits.
Why It Matters
This decision significantly expands the reach of the litigation privilege by protecting proposed amici curiae before permission to participate is granted. For advocacy organizations, law firms, and individual amici, the ruling provides strong protection against retaliatory defamation suits arising from statements made in amicus briefs—even contentious, accusatory ones—as long as those statements have some pertinence to the issues before the court. The court’s emphasis on the importance of amicus participation to informed judicial decision-making and its concern that threat of litigation would chill such participation may influence how courts balance free speech in litigation contexts against other interests. Organizations that file amicus briefs in sensitive cases involving allegations of wrongdoing now have clearer assurance that they will not face defamation liability for statements made in their briefs.
The decision also clarifies the procedural posture: a trial court that finds the litigation privilege applies and bars claims should dismiss on the basis of lack of subject matter jurisdiction without proceeding to address alternative defenses like anti-SLAPP motions. This guidance affects how trial courts should prioritize and sequence their rulings when litigation privilege issues arise.