Lafayette v. Abrami

Vermont Superior Court
Filed
Lam SRA?

VERMONT SUPERIOR COURT CIVIL DIVISION
Lamoille Unit Case No. 25-CV-00624
154 Main Street
Hyde Park VT 05655
802-888-3887
www.vermontjudiciary.org

Robert Lafayette v. Alex Abrami et al

ORDER ON PENDING MOTIONS
In this case plaintiff Robert Lafayette has sued defendants the Burlington Free
Press, its subsidiary Vermont Varsity Insider, and two of its employees, Alex Abrami and
Judith Altneau based on defendants' alleged failure to report on high school sports outside
of Chittenden County generally and on plaintiff's son's basketball games specifically.
Pending before the court are (i) plaintiff's motion for a preliminary injunction; (ii)
defendants' motion to dismiss the complaint; (iii) defendants' special motion to strike the
complaint under Vermont's anti-SLAPP statute; (iv) plaintiff's motion to voluntarily
dismiss his initial complaint without prejudice; and (iv) plaintiffs motion to file an
amended complaint. For the reasons set forth below, the court grants defendants' motions
to dismiss the complaint with prejudice and for attorney's fees and costs under the anti-
SLAPP statute, denies plaintiffs motion to amend and to dismiss the complaint without
prejudice, and denies as moot plaintiff's motion for a preliminary injunction.
Background
Plaintiff's pro se complaint alleges the following facts. Plaintiff is the parent of a
Vermont high-school basketball player and a "lifelong student of the game." Compl. 1.
Plaintiffs son, who plays for a school outside of Chittenden County, is "one of Vermont's
top-performing high school basketball players." Jd. The Burlington Free Press is Vermont's
largest newspaper. In 2018, it created and marketed Vermont Varsity Insider as a platform
to cover high school sports throughout Vermont. Alex Abrami and Judith Altneau report
and make editorial decisions for Vermont Varsity Insider. Despite its claims of statewide
coverage, Vermont Varsity Insider focuses on Chittenden County schools, many of which
have advertising or other commercial relationships with defendants. While scores from
other schools are reported when available, detailed analyses of games or individual players
are not. Although plaintiffs son had multiple 30-point games during the 2024-2025 season,
his performances were not reported in Vermont Varsity Insider, despite plaintiff's repeated
complaints. This lack of coverage has hurt plaintiff's son's college prospects and caused
plaintiff anxiety and stress, leading to uncontrollable vomiting, severe gastrointestinal
distress, and panic attacks requiring benzodiazepine treatment. The complaint seeks
compensatory and punitive damages and pleads causes of action for (i) violation of the

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Vermont Consumer Protection Act; (ii) breach of contract; (iii) negligent infliction of
emotional distress; and (iv) unjust enrichment. Contemporaneously with filing his
complaint, plaintiff moved for a preliminary injunction that would enjoin defendants from
retaliating against plaintiff or his son and require them “to provide fair and equitable
coverage consistent with their advertised services.” Pl.’s Mot. for Prelim. Injunction 1.
Defendants moved to dismiss the complaint under Rule 12(b)(6) of the Vermont
Rules of Civil Procedure and to strike the complaint under Vermont’s anti-SLAPP statute,
12 V.S.A. § 1041. Defendants also opposed plaintiff’s motion for a preliminary injunction.
Defendants argue that all of plaintiff’s claims are barred by Article 13 of the Vermont
Constitution and the First Amendment to the United States Constitution, that a special
motion to strike is warranted under the anti-SLAPP statute, and that the court should
issue an order to show cause to address whether plaintiff should be sanctioned for including
fictitious case citations and quotations in his filings.
Plaintiff opposed defendants’ motions but also moved to voluntarily dismiss his
complaint without prejudice, acknowledging and apologizing for using fictitious case
citations and quotations. Plaintiff then moved to amend his complaint. Defendants opposed
both motions, arguing that the original complaint should be dismissed with prejudice and
that the motion to amend should be denied as futile. Defendants additionally argue that the
amended complaint continues to use inaccurate case citations, and that success on their
motion to strike would preclude plaintiff from filing an amended complaint.
Discussion
1. Motion to dismiss
A complaint should be dismissed under Rule 12(b)(6) “only if it is beyond doubt that
there exist no facts or circumstances that would entitle the plaintiff to relief.” Birchwood
Land Co. v. Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420 (quotation omitted). In considering a
motion to dismiss, the court construes alleged facts and draws all reasonable inferences
from those alleged facts in favor of the non-moving party. Id. Ultimately, the court must
determine “whether the bare allegations of the complaint are sufficient to state a claim.” Id.
Defendants argue for dismissal under both Article 13 of the Vermont Constitution
and the First Amendment to the United States Constitution. The Vermont Supreme Court
has “so far declined to extend greater free-speech protection under Article 13 than under
the First Amendment,” and accordingly has construed “Article 13 as coextensive with its
federal analogue.” State v. Masic, 2021 VT 56, ¶ 7, 215 Vt. 235. The Court has also made
clear, however, that “[t]he Vermont Constitution is ‘not a mere reflection of the federal
charter,’ but ‘an independent authority, and Vermont's fundamental law.’” State v. Misch,
2021 VT 10, ¶ 14 n.8, 214 Vt. 309 (quoting State v. Badger, 141 Vt. 430, 448-49 (1982)).
Indeed, Article 13 traces its origins to Vermont’s original 1777 Constitution, adopted more

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than a decade before Vermont became part of the United States or the First Amendment
was ratified. Article 13 is thus “an ancestor and not a stepchild of the First Amendment.”
See Oberholzer v. Galapo, 322 A.3d 153, 173 (Pa. 2024) (discussing Pennsylvania
Constitution, quotation omitted).
The state constitutional question here has been fully briefed and squarely presented.
The court will accordingly address Article 13 first and refer to federal authority only to the
extent it is helpful for interpreting that provision. This approach honors the state
constitution’s role as the primary guardian of individual rights in Vermont and ensures
that its protections are not dependent on the “ebbs and flows” of federal constitutional
jurisprudence. See State v. Boyer, 2023 VT 40, ¶ 9, 218 Vt. 267 (discussing Article 11);
Baker v. State, 170 Vt. 194, 202 (Vermont Constitution is “the first and primary safeguard
of the rights and liberties of all Vermonters”); Jeffrey S. Sutton, 51 Imperfect Solutions:
States and the Making of American Constitutional Law 178-90 (Oxford Univ. Press 2018)
(“A state-first approach to litigation over constitutional rights honors the original design of
the state and federal constitutions. State primacy in guarding individual rights flows from
the U.S. Constitution and from one of its key guarantees of liberty: federalism.); Hon.
Catherine R. Connors & Connor Finch, Primacy in Theory and Application: Lessons from A
Half-Century of New Judicial Federalism, 75 Me. L. Rev. 1, 2 (2023) (arguing that “state
courts [should] consider the state constitution first” and turn “to the federal constitution
only if needed to resolve the case”).1
All of plaintiff’s claims seek to hold defendants liable for marketing Vermont Varsity
Insider as providing coverage of high school sports throughout Vermont but then providing
vastly more detailed reporting of games played in Chittenden County than of games played
elsewhere. To determine whether Article 13 protects this alleged conduct, the court looks to
the constitutional text, relevant history, Vermont Supreme Court precedent interpreting
the provision, and the construction of similar provisions in other state constitutions. See
Misch, 2021 VT 10, ¶ 9 (citing Baker, 170 Vt. at 206; State v. Jewett, 146 Vt. 221, 225-27
(1985)). The goal of the inquiry “to discover and protect the core value that gave life to” to
Article 13 and “to give meaning to the text in light of contemporary experience.” Id.
(quoting State v. Kirchoff, 156 Vt. 1, 6 (1991)).
Article 13 provides: “That the people have a right to freedom of speech, and of
writing and publishing their sentiments, concerning the transactions of government, and
therefore the freedom of the press ought not to be restrained.” Vt. Const. ch. 1, art. 13.

1 Although defendants invite the court to construe Article 13 as providing greater protection than the

First Amendment, the court declines to engage in that comparative analysis. The pending motions
only require the court to determine whether Article 13 protects the conduct alleged in the complaint.

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This text—except for the “concerning the transactions of government” clause, which
was added in 1786—was adopted verbatim from Pennsylvania’s original 1776 constitution
and included in Vermont’s original 1777 constitution. See generally John N. Schaeffer, A
Comparison of the First Constitutions of Vermont and Pennsylvania, 43 Vt. Hist. 33, 33
(1975) (“The Windsor convention that wrote the first constitution for Vermont in the
Summer of 1777 relied heavily on the Pennsylvania constitution adopted in Philadelphia
the previous September.”). Compare 1776 Penn. Const. ch. 1, art. 12 (“That the people have
a right to freedom of speech, and of writing, and publishing their sentiments; therefore the
freedom of the press ought not to be restrained.”) with 1777 Vt. Const., ch. 1, art. 14 (“That
the people have a right to freedom of speech, and of writing and publishing their
sentiments; therefore, the freedom of the press ought not be restrained.”). 2
Although records of Vermont’s 1777 constitutional convention are scarce, the
Pennsylvania Supreme Court has explained that the freedom of speech and press as
understood by Pennsylvanians in 1776 encompassed “the right to freely publish.” Pap’s
A.M. v. City of Erie, 812 A.2d 591, 604-05 (Pa. 2002) (quotation omitted). The first
Pennsylvania Constitution broadly protected this “fundamental right” in direct reaction to
British efforts to punish early Americans for criticizing the government and advocating
unpopular beliefs. There is no basis to conclude the people of Vermont intended to adopt a
less vigorous version of this right the following year, when, “emboldened by events in the
colonies, [they] issued their own declaration of independence, created the independent
Republic of Vermont, and adopted their own constitution,” thereby becoming “the first self-
created state.” See Brigham v. State, 166 Vt. 246, 259-60 (1997) (quotation omitted). Indeed,
the “new state’s leaders had to convince not only the ‘powers of the earth,’ but also the
people of Vermont and themselves, that they were entitled to statehood.” Id. In the context
of 1777, enacting vigorous protection for free expression was plainly part of this effort. See,
e.g., Akhil Reed Amar, The Words That Made Us: America’s Constitutional Conversation,
1760-1840 at 441-42 (explaining that because, in America, “the citizens themselves were
sovereign,” they enjoyed a right to “virtually unfettered political debate” that in Britain
belonged only to members speaking on the floor of Parliament).
While the conflicts of the Revolutionary era have faded into history, Article 13’s
broad protection for “freedom of speech” and “freedom of the press”—including the right to
freely publish—endures. The court concludes that this right comfortably protects
defendants’ alleged editorial choices in deciding which games and players to prioritize in
Vermont Varsity Insider.
This conclusion is supported by court decisions from both within and outside of
Vermont. Constitutional protections for speech and press have long been interpreted to

2 Available at https://avalon.law.yale.edu/subject_menus/18th.asp (last visited May 15, 2025).

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protect editorial decisions concerning “[t]he choice of material to go into a newspaper.”
Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974) (interpreting First
Amendment); see also O’Neill v. Oakgrove Const., Inc., 523 N.E.2d 277, 280–81 (N.Y. 1988)
(“[W]e have no difficulty in concluding that the guarantee of a free press in article I, § 8 of
the New York Constitution independently” protects against “undue diversion of journalistic
effort and disruption of press functions.”). Moreover, the Vermont Supreme Court has
repeatedly indicated that Article 13 provides vigorous protection for free expression that is
at least as extensive as the First Amendment, see, e.g., Masic, 2021 VT 56, ¶ 7; Shields v.
Gerhart, 163 Vt. 219, 227 (1995), and sister state courts have interpreted similar state
constitutional provisions as providing even more expansive protection in certain situations,
see, e.g., O’Neill, 523 N.E.2d at 280-81 (discussing N.Y. Const., art. 1, § 8); Oberholzer, 322
A.3d at 176 (discussing Penn. Const. art. 1, § 7). 3
This is not to suggest Article 13’s protections are absolute. See, e.g., Misch, 2021 VT
10, ¶ 62 (rejecting “rigid categories” when interpreting Vermont Constitution (citing Baker,
170 Vt. at 206)). Although Article 13 states that the freedom of the press “ought not to be
restrained,” the court assumes that, like the First Amendment, the provision permits
restrictions on certain “well-defined and narrow categories of expression [that] have “such
slight social value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality.” State v. VanBuren, 2018
VT 95, ¶ 21, 210 Vt. 293, as supplemented (June 7, 2019) (quoting Virginia v. Black, 538
U.S. 343, 358-59)). But no such categories of express are apparent here. Plaintiff’s
complaint expressly seeks to punish defendants for their reporting and editorial decisions.
Although plaintiff casts his claims as being centered on defendants’ allegedly false and
misleading marketing claims of providing “statewide” or “Vermont-wide” coverage, the
complaint makes clear that defendants did in fact report on games throughout Vermont,
but did not do so to plaintiff’s satisfaction. The gravamen of each of plaintiff’s claims is that
defendants engaged in “selective reporting” and failed to provide “balanced,” “fair,” or
sufficiently “comprehensive” statewide coverage. Compl. 19 (Consumer Protection Act), 23
(breach of contract), 25 (negligent infliction of emotional distress), 29 (unjust enrichment).

3 Article 13’s “concerning the transactions of government” clause might plausibly be read to limit the

provision’s protections to speech about government. The Vermont Supreme Court has suggested
otherwise, however, raising the possibility that this language might instead “give greater protection
in some matters of public concern.” Shields, 163 Vt. at 227 (citating In re Morrissey, 149 Vt. 1, 18-19
(1987); Wickwire v. State, 725 P.2d 695, 703 (Alaska 1986); see also Vt. Sec’y of State, Records of the
Council of Censors of the State of Vermont 81-82, 720 (Gillies & Sanford, eds. 1991) (noting that the
“concerning the transactions of government” language was added in 1786 along with a number of
other amendments seemingly designed to provide public officials with more clearly defined legal
authority, subject to greater public scrutiny).

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These allegations fail to state a claim for which relief can be granted under the Vermont
Constitution.
The motion to dismiss is accordingly granted and the motion for a preliminary
injunction is denied as moot.
2. Motion to Amend
“Under the rules of civil procedure, leave to amend the complaint ‘shall be freely
given when justice so requires,” and amendments should be liberally allowed “when
opposing parties will not be prejudiced.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4, 184 Vt. 1,
955 (quoting V.R.C.P. 15(a)). “But a court may deny a motion to amend when, among other
reasons, amendment would be futile.” Id. “Amendment is futile if the amended complaint
cannot withstand a motion to dismiss.” Vasseur v. State, 2021 VT 53, ¶ 7, 215 Vt. 224, 227.
Plaintiff’s amended complaint repeats the causes of action in his original complaint
and adds a fifth cause of action for retaliation based on defendants allegedly failing to
include plaintiff’s “known associate”—the state’s “quantifiable metric leader”—on Vermont
Varsity Insider’s “all state team” selections. Proposed Am. Compl., Count V. While the
proposed amended complaint better conforms to Vermont’s pleading requirements, it
suffers from the same fatal flaws as the original complaint, namely, it seeks to punish
defendants’ editorial decisions in violation of Article 13 of the Vermont Constitution.
Accordingly, the motion to amend is denied. To the extent plaintiff’s motion to dismiss the
original complaint without prejudice is not moot, it is also denied.
3. Motion to Strike
The court will additionally consider whether to grant defendants’ special motion to
strike. See Wolfe v. VT Digger, 2023 VT 50, ¶ 19, 218 Vt. 408 (“It is now well-settled under
our law that when a defendant files both a motion to dismiss and a special motion to strike
the complaint under 12 V.S.A. § 1041, granting the motion to dismiss does not moot the
motion to strike because the issue of attorney’s fees remains a live controversy.” (quotations
and alterations omitted)); 12 V.S.A. § 1041(f)(1) (“If the court grants the special motion to
strike, the court shall award costs and reasonable attorney’s fees to the defendant.”).
Vermont’s anti-SLAPP statute, codified at 12 V.S.A. § 1041, is designed to combat
“strategic lawsuits against public participation.” See generally Felis v. Downs Rachlin
Martin PLLC, 2015 VT 129, ¶¶ 29-52. As the Vermont Supreme Court has explained:
The statute contains a two-step process. A defendant may move to strike a
complaint in ‘an action arising from the defendant’s exercise, in connection
with a public issue, of the right to freedom of speech or to petition the
government for redress of grievances under the U.S. or Vermont
Constitution.’ If the defendant satisfies the threshold requirement, the court
must grant the motion ‘unless the plaintiff shows that: (A) the defendant’s

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exercise of his or her right to freedom of speech and to petition was devoid of
any reasonable factual support and any arguable basis in law; and (B) the
defendant’s acts caused actual injury to the plaintiff.
Cornelius v. The Chron., Inc., 2019 VT 4, ¶ 8, 209 Vt. 405 (quoting 12 V.S.A. § 1041(a),
(e)(1).
Because the statute attempts to balance two constitutional rights—“a defendant’s
right to free speech and petition and a plaintiff’s right to petition and free access to the
courts”—the statute “should be construed as limited in scope” and “great caution should
be exercised in its interpretation.” Felis, 2015 VT 120, ¶ 41. To that end, a motion to strike
must be denied if the movant cannot satisfy the “in connection with a public issue”
requirement, “regardless of the type of activity” at issue. Id., ¶ 52.
As discussed above, the court concludes that defendants’ alleged conduct involved
the exercise of freedom of speech under the Vermont Constitution. The question remains,
however, whether that exercise was “in connection with a public issue” within the meaning
of the anti-SLAPP statute.
Drawing on California law, from which Vermont’s anti-SLAPP statute was derived,
the Vermont Supreme Court has explained:
[S]peech or activity may concern a public issue or be of public interest if the
subject of the statement or activity precipitating the claim was a person or
entity in the public eye, the statement or activity precipitating the claim
involved conduct that could affect large numbers of people beyond the direct
participants, or the statement or activity precipitating the claim involved a
topic of widespread public interest.
Polak v. Ramirez-Diaz, 2025 VT 9, ¶ 26 (quotation omitted). The court concludes that
reporting on high school sports for a local newspaper audience is speech “in connection with
a public issue” insofar as high school sports is topic of interest to at least some segment of
the general public and not just the players, coaches, and parents who are directly involved
in any specific game or program. Compare Maloney v. T3Media, Inc., 853 F.3d 1004, 1010
(9th Cir. 2017 (photographs “memorializ[ing] cherished moments in NCAA sports history”
was in connection with a public issue under California law); Hecimovich v. Encinal Sch.
Parent Tchr. Org., 203 Cal. App. 4th 450, 468 (Cal. Ct. App. 2012) (concluding that “safety
in youth sports, not to mention problem coaches/problem parents in youth sports, is another
issue of public interest within the [California] SLAPP law”).
Moving to the next step of the anti-SLAPP analysis, the court considers whether
plaintiff has shown that “the defendant’s exercise of his or her right to freedom of speech
and to petition was devoid of any reasonable factual support and any arguable basis in
law.” 12 V.S.A. § 1041 (e)(1)(A). Plaintiff cannot make this showing. Plaintiff’s complaint

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and other filings focus on defendant’s use of the name Vermont Varsity Insider and
allegedly false claims that it provides “statewide” or “Vermont-wide” coverage of high school
sports. But the complaint acknowledges that defendants do in fact report the scores of
games outside Chittenden County, including games played by plaintiff’s son. This is further
supported by the affidavit of Alex Abrami, submitted in support of defendants’ motion
strike, which is unrebutted. 4
Based on the foregoing, the court grants defendants’ special motion to strike.
Because the complaint has already been dismissed for failure to state a claim, and the
proposed amendment has been denied, the impact of granting the motion to strike is
limited. Defendants are entitled their “costs and reasonable attorney’s fees.” 12 V.S.A.
§1041. The clerk will schedule a hearing on this issue. Defendants shall file their fee
request at least 10 days in advance of the hearing. Plaintiff may file an opposition seven
days thereafter.
4. Plaintiff’s misleading citations of legal authorities
Plaintiff has admitted using fictitious case citations and quotations in his filing to
the court despite previously having been warned against doing so by at least one other
court. See Pl.’s Mot. to Dismiss Compl. 1; Order to Show Cause, Lafayette v. Blueprint
Basketball et al., 23-CV-05000 (Apr. 26, 2024). At the attorney’s fee hearing, plaintiff is
ordered to show cause why sanctions should not be imposed.
Order
Plaintiff’s motion for a preliminary injunction is MOOT. Defendants’ motion to
dismiss is GRANTED. Defendants’ special motion to strike is GRANTED. Plaintiff’s motion
to dismiss the complaint without prejudice is DENIED. Plaintiff’s motion to amend the
complaint is DENIED. The clerk shall schedule a hearing on defendants’ costs and
reasonable attorney’s fees. At that hearing, plaintiff is ordered to show cause why sanctions
should not be imposed for his continued use of fictious case citations and quotations.

Electronically signed on: 5/20/2025 pursuant to V.R.E.F. 9(d)

_______________________________________
Benjamin D. Battles
Superior Court Judge

4 Plaintiff’s response—filed 26 days after the motion to strike—is also untimely. See 12 V.S.A. §

1041(b) (“A party may file a response to the motion not more than 15 days after the motion is served
on the party,” unless the deadline is extended for good cause.”).

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