(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 5, 1994 -- Decided June 20, 1994
GARIBALDI, J., writing for the Court.
Johanan Zelikovsky and Mary and Charles Ward owned condominiums in the Ocean Club, a
condominium association. At a July 30, 1989 board meeting of the condominium association, the Wards
were addressing the board on a topic related to the business of the condominium when Zelikovsky jumped
up and blurted out that the residents should not listen to the Wards because they "hate" or "don't like" Jews
and called Mrs. Ward a bitch. Zelikovsky's comments were not related to the subject on which Wards had
been speaking.
The Wards filed suit against Zelikovsky for slandering them at the condominium association meeting
and sought special, compensatory and punitive damages. At trial, both Mr. and Mrs. Ward testified that
Zelikovsky's outburst caused them to be greatly embarrassed and that they felt a "chill" and "coolness" of
many relationships that they had at the Ocean Club. Mrs. Ward claimed that after the incident she was
hesitant to participate in activities at the condominium. Zelikovsky did not deny making the statements but
claimed that he was speaking to a friend seated beside him. He testified that another Ocean Club resident
had told them that she had heard Mr. Ward make an anti-Semitic remark.
The trial court determined that the Wards were required to show special damages because the
offensive remarks were not within the four recognized categories of slander per se. The jury instruction
sheet noted that special damages were a prerequisite to recovery and required deliberations to stop as to
either Mr. or Mrs. Ward if the jury found no special damages for either party.
The jury reached its verdict, finding that Zelikovsky had slandered Mrs. Ward but that she had
sustained no special damages. Ignoring the court's instruction that deliberations should then stop regarding
Mrs. Ward, the jury also determined that she had sustained general damages, but awarded no compensatory
damages. The jury awarded Mrs. Ward punitive damages of $25,000. The jury determined that Zelikovsky
had also slandered Mr. Ward and that he had sustained special and general damages, but that the amount of
such damages was zero. The jury also awarded Mr. Ward $25,000 in punitive damages. The trial court
reminded the jury that only if special damages were found could other damages be awarded and sent the jury
back to reconsider its verdict. The jury's second verdict found that Mr. and Mrs. Ward had each sustained
special damages of $1, general damages of $1, and again awarded punitive damages of $25,000 to both Mr.
and Mrs. Ward. Mr. Zelikovsky moved for a new trial on the slander claim, which the court denied.
On appeal, a majority of the Appellate Division affirmed the trial court's judgment with one judge
dissenting. The majority expanded the traditional categories of slander per se to include imputations of
racial or ethnic bigotry, thus determining that proof of special damages was not necessary. The court also
upheld the punitive damage awards. The dissenting member of the Appellate Division rejected the majority's
view that Zelikovsky's characterization of the Wards as anti-Semitic was defamatory as a matter of law and
that the statement qualified as slander per se. Moreover, the dissent concluded that even if the statement
was defamatory, the Wards had failed to prove special damages.
Zelikovsky appealed to the Supreme Court as of right based on the dissent below. The Court also
granted certification to review the punitive-damage awards.
HELD: The content of Johanan Zelikovsky's hateful statement to the Wards, the context in which he said
it, its lack of verifiability, and the lack of any special damages established that Zelikovsky's
comment, although offensive, was not actionable under the law of slander.
1. The threshold inquiry in a slander lawsuit is whether the words used are reasonably susceptible of a
defamatory meaning. A defamatory statement is one that tends to harm the reputation of another. Whether
the statement is susceptible of a defamatory meaning is a question of law for the court. To make that
determination, a court must consider content, verifiability, and the context of the challenged statement.
Name-calling does not have a defamatory content such that harm to reputation can be shown. While factual
statements are capable of objective proof of truth or falsity, opinion statements are not because such
statements reflect a person's state of mind. If a defamatory opinion is made, the harm will be actionable
only if a reasonable factfinder would conclude that the statements imply reasonably specific assertions of fact
capable of objective proof of truth or falsity. Thus, only if Zelikovsky's statement suggests a specific factual
assertion that could proven to be true or false could the statement qualify as actionable defamation.
Moreover, the listener's reasonable interpretation, which will be based in part on the context in which a
statement appears, is the proper measure for whether the statement is actionable. If the statement occurs
during an argument or is an outburst unrelated to the general topic of discussion, a reasonable listener is less
likely to give the challenged statement its literal meaning. (pp. 8-14)
2. Most courts have concluded that allegations of racism, ethnic hatred or bigotry are not defamatory.
The most important reason for that decision is the chilling effect that such a holding would have on a
person's freedom of expression. (pp. 14-20)
3. The term "bitch" is non-defamatory because it has no ascertainable content, is not verifiable and the
context does not provide the term with a fact intensive meaning. The trial court also should have rejected
the claim for slander based on the statement that the Wards "hate" or "don't like" Jews; such a statement
could be slanderous only if reasonable listeners would interpret the statement to impute supporting facts.
Zelikovsky made no factual statements and did not appear to rely on factual statements known to his
listeners that would make his claim of anti-Semitism actionable. That statement, like the "bitch" statement,
was an unsolicited emotional outburst in the non-actionable category of name-calling. (pp. 20-24)
4. The Court will not expand the four slander per se categories to include allegations of bigotry and
cautions against further expansion of those highly-criticized per se categories. Zelikovsky's anti-Semitic
statement is not slander per se. Thus, if his statement been found to have been defamatory, the Wards
would have had to prove special damages by demonstrating actual concrete proof of harm to reputation.
The proofs were inadequate because the loss claimed by the Wards did not constitute harm of material or
pecuniary nature. Moreover, because special damages are a prerequisite to recovery in a slander action, the
punitive damage awards were also improper. (pp. 24-28)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for entry of an order dismissing the Ward's claims for failing to state a cause of action on which
relief may be granted.
JUSTICE STEIN, concurs in the Court's judgment, but only because he agrees with the holding that
allegations of bigotry do not constitute slander per se and with the determination that the evidence was
insufficient to satisfy the requirement of proof of special damages. However, Justice Stein does not agree
with the Court's conclusion that the Wards' proofs did not establish a cause of action for defamation;
because Zelikovsky's statements were capable of bearing a defamatory meaning, the Court errs in concluding
as a matter of law that the issue should not have been submitted to the jury.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK and O'HERN
join in JUSTICE GARIBALDI's opinion. JUSTICE STEIN filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
48 September Term 1993
CHARLES C. WARD and MARY B. WARD,
Plaintiffs-Respondents,
v.
JOHANAN ZELIKOVSKY,
Defendant-Appellant.
___________________________________
Argued January 5, l994 -- Decided June 20, 1994
On appeal from and on certification to the
Superior Court, Appellate Division, whose opinion
is reported at
263 N.J. Super. 497 (l993).
Gerard W. Quinn argued the cause for
appellant (Cooper, Perskie, April, Niedelman,
Wagenheim & Levenson, attorneys; Mr. Quinn
and Russell L. Lichtenstein, on the briefs).
Arthur L. Shanker argued the cause for
respondents (Weiner & Shanker, attorneys).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal concerns whether words spoken between two
condominium owners at a board meeting of their condominium
association constitute slander, and if so, whether plaintiffs
have proven sufficient damages to permit a punitive-damages
award.
Defendant, Johanan Zelikovsky, and plaintiffs, Mary and Charles Ward, own condominiums in the Ocean Club condominium
association, a complex of 725 units. They, together with
approximately one hundred other condominium residents, attended a
July 30, l989, Board meeting of the condominium association.
During the meeting, Mr. Ward addressed the Board on a topic
relating to the business of the condominium. While Mr. Ward was
speaking, Mrs. Ward stood to add her comments. Mrs. Ward
testified that at that moment Zelikovsky, who was seated a few
rows in front of her, "jumped up and said, `Don't listen to these
people. They don't like Jews. She's a bitch. I remember her.
She's a bitch.'" Mr. Ward described Zelikovsky's behavior as
follows,
[Zelikovsky] leaped up and turned around and screamed,
"I know her. She's a bitch. These people, they hate
Jews. These people hate Jews." And he was addressing
his remarks to the board, but he was pointing and going
on and on and start[ed] flailing his arms again. At
that point the chairman or the president of the board,
who has a microphone, said, "Sit down, John. Sit down,
John."
The security guard standing at the door to the conference room
testified that he heard Zelikovsky's comments and became
concerned that a fight might ensue. Zelikovsky's comments were
wholly unrelated to the subject on which Mr. and Mrs. Ward had
been speaking.
The Wards filed suit against Zelikovsky for slandering them
at the condominium association meeting and sought special,
compensatory and punitive damages. In addition, the lawsuit
charged Zelikovsky with assault and battery for an incident that
had occurred the prior year. The Wards and friends visiting from
Connecticut were going to dinner and a racetrack. While Mrs.
Ward and some of the guests were waiting for Mr. Ward to bring
his car to the front of the condominium, one of the guests was
handing out sheets with his recommended picks for that evening at
the racetrack. Zelikovsky testified that he mistook the sheets
for advertisements encouraging time-sharing at the condominium, a
practice to which he was vehemently opposed. He demanded a copy
but the guest stated that the sheets were only for his friends.
Mrs. Ward walked over to the two men and then Zelikovsky began
yelling at Mrs. Ward and poked or pushed her during the argument.
The jury found in favor of Mrs. Ward on her assault and battery
claim against Zelikovsky but found no damages. The assault and
battery claim is no longer at issue; this appeal solely addresses
Zelikovsky's alleged slander.
At trial, Mrs. Ward testified that Zelikovsky's outburst
caused her legs to start shaking. She testified that she "sat
down; and [ ] was going to cry; and then I thought, `I'm not
going to do this in front of people' because everybody was
turning around and was looking at us . . . and I was embarrassed
-- terribly embarrassed." Mr. Ward testified that he felt
"upset, frustrated, embarrassed."
After the meeting, people came up to Mrs. Ward and commented
on the incident. Mrs. Ward stated, "In the elevator on up to our
place, people commented on it; and I was very embarrassed because
how do you stand up and say, `That's not true. That's not
true.'" Although Mrs. Ward would not introduce the topic
herself, when others mentioned it, she would say, "I'm not.
Really I'm not." or "Haven't I always been nice to you?"
During her tenure as head of the condominium's "Sunshine
Committee," Mrs. Ward's duties included sending a large number of
cards to Ocean Club residents for Jewish holidays and bar
mitzvahs, from which she concluded that the Ocean Club had a
large Jewish population. Mr. Ward explained that it was not only
a "Jewish issue," however, because "[i]f people think . . . you
don't like Jews, non-Jews may not like you or want to do business
with you either." Following Zelikovsky's comments, Mrs. Ward
stated that she was embarrassed and hesitant to participate in
activities at the condominium.
As a realtor in Margate, Mrs. Ward also feared that her co-workers, many of whom were Jewish, might learn of Zelikovsky's
statement and ask her about it. Mr. Ward had sold his business
and was in the process of going into real estate himself. He
stated that "just the rumor that you, quote, `Don't like Jews,'
is probably enough not to do business in Margate." Mr. Ward
testified that his plan to buy a real estate company at the Ocean
Club had not been consummated, perhaps in part because of
Zelikovsky's statement.
On cross-examination, Mrs. Ward testified that she had "no
idea" whether the statements had caused her to lose business, but
[that they] did affect her life at the Ocean Club. After the
incident, she felt that "[a] very important part of our lives was
taken away from us which was the joy of being at Ocean Club."
She stated that the difference after the comment was that she
felt a "coolness" that had not existed prior to the statement.
She stated that "we weren't invited to things that we had been
invited to before; and several people did mention it to me."
Mr. Ward also testified that he found less enjoyment living
at the Ocean Club after the incident. He testified that he
"absolutely felt a chill and a coolness of many relationships
that he had" at the Ocean Club and that he had avoided certain
functions that he knew Zelikovsky frequented. He noted that the
other owners had excluded him and his wife from a celebration
party following an owners-board election. Zelikovsky had been
the principal financier for the newly-elected board's campaign.
On cross-examination, Mr. Ward admitted that nobody had actually
said, "Hey, we're having this celebration; but we don't want you
to go to it."
Defendant did not deny making the critical statement about
the Wards but claimed that he was merely speaking to a friend
seated beside him. He testified that Sheila Polin, another
resident at Ocean Club, had told him that she had heard Mr. Ward
make an anti-Semitic remark. Polin testified that Mr. Ward had
in fact made a comment to her about Jews that she considered
derogatory (although she could not remember the substance of the
comment) and that she had told Zelikovsky about that exchange.
Plaintiffs sought admission of Zelikovsky's tax returns to
assist the jury if it decided to award punitive damages. The
court admitted the returns into evidence over Zelikovsky's
objection that the returns should not be admissible because debts
and other liabilities were not represented in the returns.
The trial court determined that plaintiffs were required to
show special damages because the offensive remarks were not
within the four recognized categories of slander per se, namely,
statements that impute (l) commission of a crime, (2) contraction
of a loathsome disease, (3) occupational incompetence or
misconduct, and (4) unchastity of a woman. Gnapinsky v. Goldyn,
23 N.J. 243, 250-5l (l957). The jury instruction sheet therefore
noted that special damages were a prerequisite to recovery, and
it required deliberations to cease as to each plaintiff if the
jury found no special damages for that plaintiff.
The jury found that defendant had slandered Mary Ward but
that she had sustained no special damages. Ignoring the court's
instructions that deliberations should then cease concerning that
plaintiff, the jury also determined that Mrs. Ward had sustained
general damages, but it awarded no compensatory damages.
Finally, the jury awarded Mrs. Ward punitive damages of $25,000.
The jury also found that defendant had slandered Mr. Ward and
that the plaintiff had sustained special and general damages, but
that the amount of such damages was zero. The jury awarded Mr.
Ward, too, punitive damages in the amount of $25,000.
The trial court then reminded the jury that only if special
damages were found could other damages be awarded. The court
suggested that the jury might wish to achieve its purpose by
awarding nominal special damages to support the punitive-damages
award and sent the jury back for reconsideration of its verdict.
Not surprisingly, the jury's second verdict found that Mr. and
Mrs. Ward had each sustained special damages of $1, general
damages of $1, and again awarded each plaintiff punitive damages
of $25,000.
Zelikovsky moved for a new trial on the slander claim, which
the court denied. He then appealed. The Appellate Division
affirmed the trial court's judgment, with one judge dissenting.
263 N.J. Super. 497 (1993). The majority of the Appellate
Division expanded the four traditional categories of slander per
se to include imputations of racial or ethnic bigotry, thus
determining that proof of special damages was not necessary. Id.
at 511-12. The Appellate Division also upheld the punitive
damage awards. Id. at 513.
The dissent rejected the majority's view that defendant's
characterization of plaintiffs as anti-Semitic was defamatory as
a matter of law and that the statements qualified as slander per
se, which did not require proof of special damages. Id. at 513.
Moreover, the dissent concluded that even if the statements were
defamatory, plaintiffs had failed to prove special damages. Id.
at 526. Thus, the members of the Appellate Division panel
unanimously agreed that defendant's statement was not slanderous
under any of the traditional four categories of slander per se,
and that plaintiffs had not proven any special damages. They
disagreed, however, over whether defendant's statement was
defamatory, and over whether they should expand the four
traditional categories of slander per se to include statements of
religious and ethnic bigotry.
Zelikovsky appealed as of right pursuant to Rule 2:2-1(a).
We also granted defendant's petition for certification,
134 N.J. 476 (1993), which seeks a review of the punitive-damage awards.
The outcome of this case is the same whether we rely on Mr. Ward's or Mrs. Ward's version of the colloquy. We must determine whether the characterization of Mrs. Ward as a "bitch" and the claim that the Wards "don't like" or "hate" Jews are slanderous. In essence, this case concerns a verbal dispute between neighbors and thus is considerably different from libel cases involving media defendants. See Milkovich v. Lorain Journal Co., 497 U.S. l, ll 0 S. Ct. 2695, lll L. Ed.2d l (l990); Gertz v. Robert Welch, Inc., 4l 8 U.S. 323, 94 S. Ct. 2997, 4l L. Ed.2d 789 (l974); Sisler v. Gannett Co., Inc., l 04 N.J. 256 (l986); Kotlikoff v. The Community News, 89 N.J. 62 (l982). A jury can generally assume that a measure of thought preceded the words printed in a newspaper or magazine. In contrast, spoken words often do not evidence that a similar level of deliberation preceded them. See Restatement (Second) of Torts § 568(3) (1977). This distinction is significant because the apparent deliberation of the speaker or writer will influence how a reasonable audience perceives the speech.
The law of defamation exists to achieve the proper balance between protecting reputation and protecting free speech. The
threshold inquiry in a slander lawsuit is "whether the language
used is reasonably susceptible of a defamatory meaning."
Kotlikoff, supra, 89 N.J. at 67.
The Restatement (Second) of Torts § 559 defines a defamatory
statement as one that "tends so to harm the reputation of another
as to lower him in the estimation of the community or to deter
third persons from associating or dealing with him." W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § lll, at
773 (5th ed. l984), defines defamation as "that which tends to
injure `reputation' in the popular sense; to diminish the esteem,
respect, good-will or confidence in which the plaintiff is held,
or to excite adverse, derogatory or unpleasant feelings or
opinions against him." (Footnotes omitted.)
Whether the meaning of a statement is susceptible of a
defamatory meaning is a question of law for the court.
Kotlikoff, supra, 89 N.J. at 67. In determining whether the
statements are defamatory, we must consider the content,
verifiability, and context of the challenged statements.
A. Content
Courts begin their review to determine whether a statement
is susceptible of a defamatory meaning by looking "'to the fair
and natural meaning which will be given it by reasonable persons
of ordinary intelligence.'" Romaine v. Kallinger, l
09 N.J. 282,
290 (l988) (quoting Herrmann v. Newark Morning Ledger Co.
48 N.J.
Super. 420, 43l (App. Div.), aff'd on reh'g,
49 N.J. Super. 55l
(App. Div. l958)).
Although perhaps directly injurious to a person, name-calling does not have a defamatory content such that harm to
reputation can be shown. The First Amendment "does not embrace
the trite wallflower politeness of the cliche that `if you can't
say anything good about a person you should say nothing at all.'"
Rodney A. Smolla, Law of Defamation, § 6.09[2], at 6-37 (1986).
Indeed, "name calling, epithets, and abusive language, no matter
how vulgar or offensive, are not actionable." Id. at § 6.12[9],
at 6-54. "No matter how obnoxious, insulting or tasteless such
name-calling, it is regarded as a part of life for which the law
of defamation affords no remedy." Id. at § 4.03, at 4-11.
The Restatement (Second) of Torts succinctly differentiates
between actionable defamatory statements and non-defamatory name-calling:
There are some statements that are in form statements
of opinion, or even of fact, which cannot reasonably be
understood to be meant literally and seriously and are
obviously mere vituperation and abuse. A certain
amount of vulgar name-calling is frequently resorted to
by angry people without any real intent to make a
defamatory assertion, and it is properly understood by
reasonable listeners to amount to nothing more. This
is true particularly when it is obvious that the
speaker has lost his temper and is merely giving vent
to insult. Thus when, in the course of an altercation,
the defendant loudly and angrily calls the plaintiff a
bastard in the presence of others, he is ordinarily not
reasonably to be understood as asserting the fact that
the plaintiff is of illegitimate birth but only to be
abusing him to his face. No action for defamation will
lie in this case.
Courts thus distinguish "between genuinely defamatory communications as opposed to obscenities, vulgarities, insults,
epithets, name-calling, and other verbal abuse." Smolla, supra,
§ 4.03, at 4-l0. Likewise, courts differentiate between
defamatory statements and statements of rhetorical hyperbole.
Id. at § 4.04[l], at 4-l2.
B. Verifiability
Courts have used two tests to determine if a statement is
capable of a defamatory meaning: (1) was the statement one of
opinion or fact, or (2) was it one of fact or non-fact. Smolla,
supra, § 6.0l[1], at 6-3; § 6.01[2], at 6-5. Those distinctions
have generally proven unsatisfactory and unreliable.
At the core of those tests, however, are certain fairly
well-established principles. True statements are absolutely
protected under the First Amendment. 2 Fowler V. Harper et al.,
The Law of Torts § 5.1, at 42 (2d ed. 1986) (stating "[T]he law
makes truth a defense . . . because the utterance of truth is in
all circumstances an interest paramount to reputation.").
Factual statements, unlike non-factual statements, are uniquely
capable of objective proof of truth or falsity.
Opinion statements, in contrast, are generally not capable
of proof of truth or falsity because they reflect a person's
state of mind. Hence, opinion statements generally have received
substantial protection under the law. As the United States
Supreme Court stated in oft-quoted dicta, "Under the First
Amendment there is no such thing as a false idea." Gertz, supra,
418 U.S. at 339, 94 S. Ct. at 3007, 41 L. Ed.
2d at 805.
The Supreme Court recently clarified its statement in Gertz
by explaining that it had not "intended to create a wholesale
defamation exemption for anything that might be labeled
'opinion.'" Milkovich, supra, 497 U.S. at l8, ll0 S. Ct. at
2705, lll L. Ed.2d at l7 (l990). Harm from a defamatory opinion
statement is redressable when the statement implies underlying
objective facts that are false. See id. at l8-20, ll0 S.Ct. at
2705-06, lll L. Ed.2d at l7-l8. Only if a reasonable factfinder
would conclude that the statements imply reasonably specific
assertions of fact will the harm be redressable. Ibid.
The significance of opinion/fact and non-fact/fact
distinctions centers on the concept of verifiability. Requiring
that a statement be verifiable ensures that defendants are not
punished for exercising their First Amendment right to express
their thoughts. Unless a statement explicitly or impliedly rests
on false facts that damage the reputation of another, the alleged
defamatory statement will not be actionable. We require
verifiability because "[i]nsofar as a statement lacks a plausible
method of verification," the trier of fact who is charged with
assessing a statement's truth "will have considerable difficulty
returning a verdict based upon anything but speculation." Ollman
v. Evans,
750 F.2d 970, 979 (D.C. Cir. l984), cert. denied, 47l
U.S. ll27, l
05 S. Ct. 2662,
86 L. Ed.2d 278 (l985).
Thus, only if Zelikovsky's statement suggested specific
factual assertions that could be proven true or false could the
statement qualify as actionable defamation. The higher the "fact
content" of a statement, the more likely that the statement will
be actionable. Smolla, supra, § 6.06[3], at 6-24. Plaintiff
prevails, however, only if the underlying or implied facts are
untrue. "[L]oose, figurative or hyperbolic language" will be
less likely to imply specific facts, and thus more likely to be
deemed non-actionable as rhetorical hyperbole or a vigorous
epithet. Milkovich, supra, 497 U.S. at 17, 21, 110 S. Ct. at
2705, 2707, 111 L. Ed.
2d at 16, 19.
C. Context
Courts do not automatically decide a case on "[t]he literal
words of the challenged statement." Smolla, supra, § 6.03[8][a],
at 6-16.16. Rather, courts must "consider the impression
created by the words used as well as the general tenor of the
expression," as experienced by a reasonable person. Ibid.; see
Immuno AG. v. Moor-Jankowski,
567 N.E.2d 1270, 1273-74 (N.Y.),
cert. denied, ___ U.S. ___,
111 S. Ct. 2261,
114 L. Ed.2d 713
(1991).
When considering the statement's "fair and natural" meaning,
therefore, courts permit the context in which the statement
appears to inform its determination of whether the statement was
capable of a defamatory meaning. See Cibenko v. Worth
Publishers, Inc., 5l
0 F. Supp. 76l, 764 (D.N.J. l98l) (applying
New Jersey law); Romaine, supra, 109 N.J. at 290.
The listener's reasonable interpretation, which will be
based in part on the context in which the statement appears, is
the proper measure for whether the statement is actionable.
Restatement (Second) of Torts, supra, § 566 comment c. If the
comment occurred during an argument or is an outburst unrelated
to the general topic of discussion, for example, a reasonable
listener is less likely to accord to the challenged statement its
literal meaning. Indeed, "[t]he ordinary reasonable recipient of
a communication naturally discounts to some degree statements
made in the heat of vitriolic battle, because the recipient
understands and anticipates the human tendency to exaggerate
positions during the passions and prejudices of the moment."
Smolla, supra, § 6.08[4][b][ii], at 6-35.
The Restatement (Second) of Torts effectively illustrates
how circumstances may affect a recipient's interpretation of a
communication:
The circumstances under which verbal abuse is uttered
affect the determination of how it is reasonably to be
understood. Words uttered face to face during an
altercation may well be understood merely as abuse or
insult, while words written after time for thought or
published in a newspaper may be taken to express the
defamatory charge and to be intended to be taken
seriously.
Most courts that have considered whether allegations of racism, ethnic hatred or bigotry are defamatory have concluded for a variety of reasons that they are not. The most important reason is the chilling effect such a holding would cast over a person's freedom of expression. In Stevens v. Tollman, 855 F.2d 394 (1988), cert. denied, 489 U.S. 1065, 109 S. Ct. 1339, 103 L. Ed.2d 809 (1989), the Seventh Circuit held that an accusation of
bigotry is not actionable unless the statement suggests the
existence of defamatory facts. An elementary-school principal
sued the president of the local parent teacher association for
calling the principal a "racist." Judge Easterbrook, writing for
a unanimous panel, reasoned that
[a]ccusations of "racism" no longer are "obviously and
naturally harmful." The word has been watered down by
overuse, becoming common coin in political discourse. .
. . Formerly a "racist" was a believer in the
superiority of one's own race, often a supporter of
slavery or segregation, or a fomenter of hatred among
the races. . . . Politicians sometimes use the term
much more loosely, as referring to anyone (not of the
speaker's race) who opposes the speaker's political
goals--on the "rationale" that the speaker espouses
only what is good for the jurisdiction (or the
audience), and since one's opponents have no cause to
oppose what is beneficial, their opposition must be
based on race. The term used this way means only: "He
is neither for me nor of our race; and I invite you to
vote your race." . . . That may be an unfortunate brand
of politics, but it also drains the term of its former,
decidedly opprobrious, meaning. The term has acquired
intermediate meanings too. The speaker may use "she is
a racist" to mean "she is condescending to me, which
must be because of my race because there is no other
reason to condescend" -- a reaction that attaches
racial connotations to what may be an inflated opinion
of one's self -- or to mean "she thinks all black
mothers are on welfare, which is stereotypical."
Meanings of this sort fit comfortably within the
immunity for name-calling.
Thus, the Seventh Circuit held that under Illinois law bald accusations of bigotry, unsupported by specific factual allegations, constitute mere personal invective, which is not actionable. Ibid; see also Buckley v. Littell, 539 F.2d 882 (2d Cir. l976)(holding that the terms "fascist," "fellow traveler," and "radical right" directed against William F. Buckley, Jr.,
although strong and hate-filled, constituted expressions on
matters of opinion, such as what constitutes a "fascist," and
therefore did not necessarily imply defamatory facts), cert.
denied,
429 U.S. 1062,
97 S. Ct. 785-86,
50 L. Ed.2d 777 (1977);
Rutherford v. Dougherty, 9l F.2d 707 (3d Cir. l937) (holding that
clergyman's accusation in letter to department store that
operated radio station that radio broadcaster fomented religious
hatred and bigotry was not libelous); Kimura v. Superior Court
(Vandenberg), 28l Cal. Rptr. 69l, 698 (Ct. App. l99l), cert.
denied sub nom. VanDenberg v. Regents of Univ. of Cal., ___ U.S.
___ , ll
2 S. Ct. 937, ll
7 L. Ed 2d l08 (l992) (concluding that
publicly-circulated letter describing higher level college
administrator as racist and bigot was not defamatory because use
of epithet "racist" does not "have the tone of a reasoned
accusation, but rather is more like the emotional rhetoric
characteristic of debate in this area."); Sall v. Barber, 782
P.2d l2l6, 1218-19 (Colo. Ct. App. l989) (holding term "bigot,"
in context that plaintiff "was not fit to shine [another
person's] shoes," and should be exiled with "other coyotes and
skunks," would be perceived as "rhetorical hyperbole" and was not
defamatory); Rambo v. Cohen,
587 N.E 2d l40, 147 (Ind. Ct. App.
l992) (holding that statements that plaintiff was "anti-Semit[e]"
and a "horse's butt" were not defamatory per se, because
"obnoxious remarks, even remarks much more obnoxious than those
Cohn is alleged to have made here, are not defamatory per se, and
will not lead to liability without proof of special damages").
In Raible v. Newsweek, Inc., 34l F. Supp. 804, 806-07 (W.D.
Pa. l972), the magazine placed plaintiff's picture next to an
article that accuses the "white majority" of being "racially
prejudiced," "angry, uncultured, crude," and "violence prone."
Accepting that the article could be found to refer to the
plaintiff, the court nevertheless concluded that the statements
were not capable of a defamatory meaning, holding that "to call a
person a bigot or other appropriate name descriptive of his
political, racial, religious, economic or sociological
philosophies gives no rise to an action for libel." Id. at 807.
The court noted our nation's long history of robust public
expression, including the use of abusive rhetoric:
Americans have been hurling epithets at each other for
generations. From charging "Copperhead" during the
Civil War, we have come down to "Racist", "Pig",
"Fascist", "Red", "Pinko", "Nigger Lover", "Uncle Tom"
and such. Certainly such name calling, either
expressed or implied, does not always give rise to an
action for libel.
In Rybas v. Wapner, 457 A.2d 108 (Pa. Super. Ct. 1983), a landlord sued a tenant and the tenant's attorney for libel because the tenant's attorney had written a letter to the landlord's attorney stating that the landlord should make some effort "to demonstrate that he is not as an [sic] anti-Semitic as he appears to be." Id. at 109. The court held that the statement, although personally offensive, was not actionable.
We note that to restrict too severely the right to express such opinions, no matter how annoying or disagreeable, would be [sic] dangerous curtailment of a First Amendment right. Individuals should be able to
express their views about the prejudices of others
without the chilling effect of a possible lawsuit in
defamation resulting from their words.
In Cibenko, supra, 5l
0 F. Supp. 76l, a federal court
interpreted New Jersey defamation law in a libel action brought
by a white transit-police officer against the publisher of a
sociology textbook. The textbook contained a photograph of the
officer prodding a black man with a night-stick. The caption
referred to the social status of the offender as the most
significant determinant in applying criminal sanctions and
questioned whether the officer would have acted the same way if
the "offender" had been white. The court granted summary
judgment in favor of the publisher because the allegedly libelous
statement was not of or concerning the plaintiff when considered
as a whole. Id. at 765. The court continued, however, that even
if it considered the statement to be "of or concerning the
plaintiff," no action would stand. The court reasoned as
follows:
Even if innuendo implying that plaintiff is racially
prejudiced were drawn [from the photograph and
caption], it would be insufficient to constitute
actionable libel
Thus, the court determined that under federal constitutional law,
that accusation of racism was non-actionable opinion. Id. at
766.
These cases demonstrate that most states do not consider words of bigotry or racism to constitute actionable defamation, thus protecting the freedom to express even unpopular, ugly and hateful, political, religious, and social opinions. But see Sweeney v. Schenectady Union Pub. Co., 122 F.2d 288 (2d Cir. 1941), (reversing dismissal of complaint involving newspaper article that falsely accused congressman of opposing the appointment of a certain person as a federal judge because that person was Jewish and holding that the statement could be actionable libel under a statute that made libelous per se the publication of "words which tend to expose one to public hatred, shame . . . or [ ] induce an evil opinion of one in the minds of right-thinking persons"), aff'd, 316 U.S. 642, 62 S. Ct. 1031, 86 L. Ed. 1727, reh'g denied, 316 U.S. 710, 62 S. Ct. 1266, 86 L. Ed.2d 1776 (1942); City of Brownsville v. Pena, 716 S.W.2d 677 (Tex. Ct. App. 1986) (upholding jury verdict finding libelous supervisor's comment in newspaper interview that plaintiff employee was "a person with racist attitudes against Mexicans legally residing in the United States" who had "threatened to fire them as soon as he takes over"). Pena and Sweeney are distinguishable from our case because the court in those cases deemed the statements libelous per se and the statements in those cases rested on specific facts. Interestingly, the Second Circuit's decision in Sweeney was the only one of eight published opinions that held the article to be defamatory. The other courts all ruled that the alleged statement was not actionable.
Ward, supra, 263 N.J. Super. at 519 n.4 (Skillman, J.,
dissenting).
Because this case implicates First Amendment freedoms, we must "`make an independent examination of the whole record,'" to ensure that "`"the judgment does not constitute a forbidden intrusion on the field of free expression."'" Milkovich, supra, 497 U.S. at 17, 110 S. Ct. at 2705, 111 L. Ed. 2d at 17 (quoting Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 1958, 80 L. Ed.2d 502, 515 (1984) (quoting New York Times v. Sullivan, 376 U.S. 254, 284-86, 84 S. Ct. 710, 728, 11 L. Ed.2d 686, 709 (1964))). We begin with Zelikovsky's characterization of Mrs. Ward as a "bitch." Although extremely offensive to Mrs. Ward and perhaps understood by those who heard it to express a negative opinion of her, defendant's description of Mrs. Ward as a "bitch" was "simply personal invective." Ward, supra, 263 N.J. Super. at 5l5 (Skillman, J., dissenting).
The term "bitch" is undoubtedly disparaging. But to hold that calling someone a "bitch" is actionable would require us to imbue the term with a meaning it does not have. Such a holding would, in effect, say that some objective facts exist to justify characterizing someone as a bitch. If calling someone a bitch is actionable, defendants must be able to raise the defense of truth. "Bitch" in its common everyday use is vulgar but non-actionable name-calling that is incapable of objective truth or falsity. A reasonable listener hearing the word "bitch" would
interpret the term to indicate merely that the speaker disliked
Mrs. Ward and is otherwise inarticulate. Although Zelikovsky's
manner of expression was very offensive, our slander laws do not
redress offensive ideas. Because the term "bitch" has no
ascertainable content, is not verifiable and the context does not
imbue the term with a fact intensive meaning, the trial court
should have ruled the "bitch" statement non-actionable.
Likewise, the trial court should have rejected the claim for
slander based on the statement that the Wards "hate" or "don't
like" Jews because that statement is also non-actionable. The
Appellate Division found that defendant's statement did not fall
within the four traditional categories of slander per se, and
that plaintiffs had not proven special damages. 263 N.J. Super.
at 510, 512. Nevertheless, the Appellate Division concluded that
plaintiffs had an actionable claim by expanding the scope of the
categories of slander per se to include imputations of racial or
ethnic bigotry such as occurred in this case. Id. at 512. We
disagree with the Appellate Division's holding that defendant's
"anti-Semitic" statement falls within slander per se.
A proper analysis of the alleged slanderous statement
requires examination of the content of defendant's entire
statement and the context in which it was made. Defendant's
statement suggested no specific facts. As such, the statement
cannot be distinguished from characterizations that a person is a
"racist," "bigot," "Nazi," or "fascist." The statement claiming
that the Wards are anti-Semitic could be slanderous only if
reasonable listeners would interpret the statement to impute
supporting facts. At trial, Zelikovsky claimed that his
allegation of anti-Semitism was supported by the fact that his
neighbor, Sheila Polin, had overheard Mr. Ward make an anti-Semitic statement. But that basis for the claim of anti-Semitism
was not generally known to those who overheard Zelikovsky's
statement, nor did Zelikovsky advise the listeners that this was
the basis for his claim that the Wards "hate Jews." Thus,
Zelikovsky made no factual statements and did not appear to rely
on factual statements known to the audience that would transform
his claim of anti-Semitism into an actionable statement.
The statement followed the classification of Mrs. Ward as a
"bitch" and was part of an unsolicited emotional outburst. That
context places the claim that the Wards "hate" or "don't like"
Jews in the non-actionable category of name-calling that although
hurtful to the target is not redressable under slander laws.
Name-calling is not actionable under defamation law because "[a]
certain amount of vulgar name-calling is tolerated, on the theory
that it will necessarily be understood to amount to nothing
more." Keeton, supra, §111, at 776. As Judge Skillman's
dissenting opinion observes,
defendant was in a highly agitated state when he called
Mrs. Ward a "bitch" and Mr. and Mrs. Ward "Jew haters."
Under these circumstances, any reasonable listener
would have understood defendant's tirade to have been
"merely giving vent to insult."
[263 N.J. Super. at 520 (quoting Restatement
(Second) of Torts, supra, § 566 comment e).]
Defendant's statement was non-actionable and any claim based
thereon should have been dismissed as a matter of law.
Not all accusations of bigotry are automatically non-defamatory, however. Instances may arise in which claiming
someone is a bigot will become more than non-actionable insult.
Whether an accusation of bigotry is actionable depends on whether
the statement appeared to be supported by reasonably specific
facts that are capable of objective proof of truth or falsity.
The statement might explicitly refer to those specific facts or
be made in such manner or under such circumstances as would
fairly lead a reasonable listener to conclude that he or she had
knowledge of specific facts supporting the conclusory accusation.
For example, a claim of bigotry could include claims that the
selected person had engaged in specific acts such as making
racist statements, failing to associate with or to act with
courtesy toward people of a particular race, denying another
employment or advancement because of race or religion, or posting
signs that carried a racist message. Even under those facts, a
court would need to examine the context in which the statements
were made before it determined that the statements could properly
form the basis of a lawsuit for slander. And, of course, the
court would have to find that plaintiffs had sustained special
damages which we discuss in Section V.
In addition, even if the statements had been found defamatory rather than merely insulting, plaintiffs would still
have to prove special damages. Although scathing
characterizations can be hurtful, the law of defamation does not
provide redress whenever feelings and sensibilities are offended.
Harper, supra, 2 The Law of Torts § 5.l, at 24. Rather, recovery
for slander exists to redress solely harm to reputation. See
Printing Mart-Morristown v. Sharp Elecs. Corp., ll
6 N.J. 739, 765
(l989) (stating, "Defamation imposes liability for publication of
false statements that injure the reputation of another.").
To succeed in an action for slander, the plaintiff must
demonstrate actual harm to reputation through the production of
concrete proof. See Sisler, supra, 104 N.J. at 261 (1986)
(describing identical requirement of proving injury to reputation
in libel cases). "Awards based on a plaintiff's testimony alone
or on `inferred' damages are unacceptable." Id. at 281. Rather,
proof that an existing relationship has been seriously disrupted
or testimony of third parties detailing a diminished reputation
will be necessary to satisfy the requirement that special damages
exist before a jury may award any other type of damages. Ibid.
Special damages are defined as harm of a material or pecuniary
nature. Arturi v. Tiebie,
73 N.J. Super. 217, 222 (App. Div.
1962).
The damages element is waived under the four traditional
categories of slander per se because damage to reputation is
presumed to flow from such statements. Gnapinsky, supra, 23 N.J.
at 250; Keeton, supra, § 112, at 788. The "anti-Semitic"
statement does not come within any of the four traditional
categories of slander per se. We do not adopt the Appellate
Division's holding that expanded the four slander per se
categories to include allegations of bigotry, and we caution
against further expansion of the highly-criticized per se
categories.
The slander per se categories exist because historically,
some types of statements were held to "`clearly "sound to the
disreputation" of the plaintiff,'" making them defamatory on
their face and actionable per se." Hall v. Heavey,
195 N.J.
Super. 590, 595 (App. Div. 1984) (quoting Shaw v. Bender,
90 N.J.L. 147, 149 (E. & A. 1917) (quoting Odg. L. & S. *18)).
Because courts assumed such statements were injurious, the court
would "`presume without proof, that plaintiff's reputation has
been thereby impaired.'" Ibid. (quoting Shaw, supra, 90 N.J.L.
at 149).
Commentators discourage the continued existence of slander
per se categories and specifically disagree with the rule that
parties need prove no special damages for those types of slander.
E.g., David A. Anderson, Reputation, Compensation, and Proof, 25
Wm. & Mary L. Rev. 747, 748 (1984)(hereinafter "Anderson").
Requiring proof of special damages requires a plaintiff to
demonstrate harm to reputation from an alleged defamatory
statement. See Arturi, supra, 73 N.J. Super. at 223 (observing
that direct harm, i.e., emotional distress caused by plaintiff's
knowledge that he was defamed, is not special harm because only
harm to reputation is compensable). The trend of modern tort law
is to focus on the injury not the wrong and the slander per se
categories are a relic from tort law's previous age. Anderson,
supra, 25 Wm. & Mary L. Rev. at 747-48. Because the goal of
defamation law should be to "compensat[e] individuals for harm to
reputation," the trend should be toward elimination not expansion
of the per se categories. Harper, supra, 2 The Law of Torts §
5.14, at 116; Keeton, supra, § 112, at 794; Smolla, supra, §
7.09, at 7-16; Anderson, supra, 25 Wm. & Mary L. Rev. at 749,
751.
We leave for another time whether we should eliminate
slander per se. Today we decide only that we will not expand the
four slander per se categories and that defendant's "anti-Semitic" statement does not come within any of the four
traditional categories of slander per se.
Because we reject the Appellate Division's determination
that allegations of bigotry qualify as slander per se, the law
requires specific proof that plaintiffs suffered special damages
as a prerequisite to any recovery. Special damages are defined
as "the loss of something having economic or pecuniary value."
Restatement (Second) of Torts, supra, § 575 comment b; See
Anderson, supra, 25 Wm. & Mary L. Rev. at 760 (advocating
substitution of term "actual injury" for "special damages").
The Wards' proofs in this case were inadequate to meet the
causation and damages elements necessary to a successful tort
action. Both the majority and dissent in the Appellate Division
found that plaintiffs' claimed loss did not constitute "harm of a
material or pecuniary nature". Ward, supra, 263 N.J. Super. at
503, 526. The Wards did not offer sufficient proof that the
"chill" they felt, the feeling of not being wanted at condominium
affairs, and the alleged decline in Mrs. Ward's real-estate
business actually existed and were caused by Zelikovsky's
statement at the condominium board meeting. Significantly, no
witness testified to thinking less of the Wards because of
Zelikovsky's statements. See Anderson, supra, 25 Wm. & Mary L.
Rev. at 770 n.94 (noting that "a defamation plaintiff always must
choose whether to suffer in silence or risk further harm to his
reputation" by being forced to repeat defamation when seeking
witnesses to testify about their perception of plaintiffs after
statement). Indeed, the witness presented by the Wards testified
that the Wards did not drop in their esteem as a result of
Zelikovsky's statements. Moreover, "lowered social standing and
its purely social consequences are not sufficient" to support a
finding of special damages. Restatement (Second) of Torts,
supra, § 575 comment b. Even the jury did not find special
damages on its first review of the case. Ward, supra, 263 N.J.
Super. at 526.
Because special damages are a prerequisite to recovery in a
slander action, the punitive damage awards were also improper.
Accordingly we do not reach the questions posed in defendant's
petition for certification of whether adequate evidence was
presented to justify the punitive damage awards.
We sympathize with the Wards. Defendant's language was extremely repulsive and hateful and undoubtedly caused the Wards great embarrassment. It was not, however, defamatory, nor did the Wards prove that the statements caused ascertainable damage to their reputation. There is a regrettable rudeness in our society today. Social and public discourse is marked by uncivility and boorishness. Nonetheless, as society has evolved, social attitudes toward judicial review of speech have changed. As a society we have made a determination that the best way to combat bias and prejudice is through the exchange of ideas and speech, not through lawsuits.
We continue to seek a balance between freedom of speech and protection of a person's reputation. In recognizing that important balance, we determine that the content of defendant's hateful statement, the context in which he said it, its lack of verifiability, and the lack of any special damages establish that Zelikovsky's conduct, although hateful and despicable, was not actionable under the law of slander.
We reverse the judgment of the Appellate Division and remand to the Law Division for entry there of an Order dismissing plaintiffs' claims for failing to state a cause of action on which relief may be granted. No costs.
Chief Justice Wilentz and Justices Clifford, Handler,
Pollock, and O'Hern join in this opinion. Justice Stein has
filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
48 September Term 1992
CHARLES C. WARD and MARY B. WARD,
Plaintiffs-Respondents,
v.
JOHANAN ZELIKOVSKY,
Defendant-Appellant.
_________________________________
STEIN, J., concurring.
I concur in the Court's judgment, but only because I agree
with the holding that allegations of bigotry do not constitute
slander per se, ante at ___ (slip op. at 24-26), and with the
Court's determination that plaintiffs' evidence was insufficient
to satisfy the requirement of proof of special damages. Ante at
___ (slip op. at 26-27). I cannot agree, however, with the
Court's conclusion that plaintiffs' proofs did not establish a
cause of action for defamation. Ante at ___ (slip op. at 21-23).
No one could find fault with the Court's observation that
"the best way to combat bias and prejudice is through the
exchange of ideas and speech, not through lawsuits." Ante at ___
(slip op. at 28). But the critical issue presented by this
appeal is not whether litigation is the ideal vehicle to combat
prejudice, but rather whether plaintiffs presented sufficient
evidence of defamation to warrant submission of the issue to the
jury. The Court's explanation of the applicable legal principles
is virtually flawless, but in my view it errs grievously in
applying the law to the facts.
The Court acknowledges that content and context determine
whether an accusation of bigotry is defamatory:
Whether an accusation of bigotry is
actionable depends on whether the statement
appeared to be supported by reasonably
specific facts that are capable of objective
proof of truth or falsity. The statement
might explicitly refer to those specific
facts or be made in such manner or under such
circumstances as would fairly lead a
reasonable listener to conclude that he or
she had knowledge of specific facts
supporting the conclusory accusation.
[Ante at ___ (slip op. at 23).]
In that respect, the Court's observations track the analysis
in the Restatement of Torts on which the Court relies:
The second kind of expression of
opinion, or the mixed type, is one which,
while an opinion in form or context, is
apparently based on facts regarding the
plaintiff or his conduct that have not been
stated by the defendant or assumed to exist
by the parties to the communication. Here
the expression of the opinion gives rise to
the inference that there are undisclosed
facts that justify the forming of the opinion
expressed by the defendant. To say of a
person that he is a thief without explaining
why, may, depending upon the circumstances,
be found to imply the assertion that he has
committed acts that come within the common
connotation of thievery.
[Restatement (Second) of Torts
§ 566 comment b (1977).]
The United States Supreme Court recently expressed similar
views in assessing the potentially defamatory nature of
expressions of opinion:
[E]xpressions of "opinion" may often imply an
assertion of objective fact.
If a speaker says, "In my opinion John
Jones is a liar," he implies a knowledge of
facts which lead to the conclusion that Jones
told an untruth. Even if the speaker states
the facts upon which he bases his opinion, if
those facts are either incorrect or
incomplete, or if his assessment of them is
erroneous, the statement may still imply a
false assertion of fact. Simply couching
such statements in terms of opinion does not
dispel these implications; and the statement,
"In my opinion Jones is a liar," can cause as
much damage to reputation as the statement,
"Jones is a liar."
[Milkovich v. Lorain Journal Co.,
497 U.S. 1,
18-19,
110 S. Ct. 2695, 2705-06,
111 L. Ed.2d 1, 17-18 (1990).]
The record informs us that Zelikovsky was the "principal financier" for the slate of directors ele