(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 March 14, 1994 -- Decided July 20, 1994
GARIBALDI, J., writing for the Court.
Whit Andrews, a reporter with the Ocean County Observer (Observer), was assigned to investigate
reports of possible misconduct by certain police officers in the Borough of Seaside Heights (Borough).
Andrews was given a docket number and told to determine whether "a notice of claim" against the Borough
had been filed. On November 7, 1990, a judge's law clerk permitted Andrews to inspect a file entitled
Nicholas J. Guiliano v. Borough of Seaside Heights and James Magovern, III.
The file contained a pro se Order to Show Cause and an affidavit of Nicholas Guiliano with several
attached exhibits. In the Order, Guiliano complained that he had been arbitrarily denied discovery in
connection with pending disorderly-conduct and obstructing-justice complaints filed against him in the
Borough municipal court, and scheduled for trial on August 14, 1990. Specifically, Guiliano sought from the
Borough the employment records of Patrolman Magovern who had arrested Guiliano's female acquaintance,
Elizabeth Fesl, on May 17, 1988. Fesl was issued a summons for disorderly conduct and obstructing justice.
Four months later, Guiliano was also issued a summons for obstruction of justice. Paragraph 8 of Guiliano's
affidavit referred to Exhibit E, an alleged Notice of Tort Claim. However, Exhibit E was not a notice of
claim but was a typewritten, unsigned, unfiled draft of a complaint in which Guiliano and Fesl assert claims
against the Borough and many of its police officers, including Lieutenant Costello. According to the
complaint, Costello conducted an unlawful strip-search of Fesl in that he fondled her genital, anal and breast
areas while she was handcuffed.
Andrews unsuccessfully attempted to communicate with Lieutenant Costello, Officer Magovern and
other Borough officials concerning what he had read in the file. On November 8, 1990, Andrews telephoned
the Borough's attorney, Ronald Hoffman, and told Hoffman what he had discovered. Andrews specifically
mentioned the allegation against Costello and stated that he intended to write a story describing the alleged
improprieties. According to Hoffman, he told Andrews that he was not aware of any pending complaints
against Costello and cautioned Andrews regarding the possibility of libel and slander if Andrews published
the story.
Andrews' story appeared in the November 9, 1990 edition of the Observer. On March 12, 1991,
Costello sued Andrews and the Observer for defamation. On August 4, 1992, the Observer and Andrews
filed a motion for summary judgment on the ground that the article was protected by the fair-report privilege
and that Costello had failed to establish actual malice in the writing and publication of the article. Costello
filed a cross-motion for partial summary judgment on the ground that the story was defamatory per se and
asked the court to strike the fair-report privilege as a matter of law. The trial court denied both motions.
In an unpublished opinion, the Appellate Division reversed and remanded for entry of summary
judgment in favor of Andrews and the Observer, concluding that the fair-report privilege applied and that
Costello had failed to establish actual malice by clear and convincing evidence. The Supreme Court granted
certification.
HELD: The fair-report privilege does not apply to the Ocean County Observer article because it fails to
convey fully, fairly, and accurately the status of a pending judicial proceeding. Moreover, Officer
Costello is a public figure subject to the actual-malice burden of proof. That burden has not
been met in this case because Costello has failed to prove by clear and convincing evidence that
the Observer article was written and published with actual malice.
1. The fair-report privilege is an exception to the general rule that imposes liability for republication of
a defamatory statement. The privilege applies to reports of defamatory statements made in judicial and
other official proceedings. Although the report contains matters that would otherwise be defamatory and
actionable, the privilege applies unless there is proof of malice in making it. For the privilege to apply, the
court must first determine whether the report is a full, fair and accurate account of the judicial or other
official proceedings. (pp. 9-12)
2. The fair-report privilege will not protect a story if any errors or omissions mislead readers. In this
case, a reasonable reader of the Observer article would conclude that Fesl was actively pursuing her
harassment claim against Officer Costello, although she had not filed a complaint. The article is not an
accurate report of a judicial proceeding because a reader who reviews the entire article receives conflicting
information regarding the status of the matter and the omission of significant facts causes the article to be
misleading and unfair. More importantly, the article, and especially its headline, inaccurately make Officer
Costello the focus of the court proceeding when in fact, the proceeding related to certain discovery
concerning Officer Magovern. Thus, because the article fails to convey fully, fairly and accurately the status
of a pending judicial proceeding, the Observer and Andrews do not enjoy the protection of the fair-report
privilege. (pp. 12-19)
3. Because the fair report privilege is inapplicable, general fault standards govern. Under those
standards, a plaintiff can prevail by showing either negligence, if the plaintiff is a private figure, or actual
malice, if the plaintiff is a public figure. New Jersey courts have consistently found that police officers are
public officials, and have applied the actual-malice standard to officers acting in their official capacity. As
such, Costello, a police lieutenant who was challenging an article purporting to describe his official conduct,
is a public official subject to the actual-malice standard. (pp. 19-21)
4. Costello must demonstrate that a reasonable jury could conclude that "clear and convincing
evidence" exists that the Observer and Andrews published the article with actual malice. To find actual
malice, the factfinder must determine that the defendant in fact had serious doubt about the truth of the
statement or had a subjective awareness of the story's possible falsity. Here, even when considering the
evidence in a light most favorable to Costello, a reasonable factfinder could not find "clear and convincing"
evidence of Andrews' actual malice. Costello fails to point to any proof suggesting that Andrews actually
doubted that Fesl's claim was true or that a complaint was pending. The Observer article demonstrates, at
most, a confused understanding of a court file due to Andrews' inexperience as a reporter. (pp. 21-30)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE O'HERN, concurring in the judgment of the Court, is of the view that the Court has more
closely circumscribed the fair-report privilege than the law requires. Courts should accord some degree of
liberality in evaluating a claim that an article has misstated the gist of legal proceedings. For a report to be
characterized as fair and true, it should be enough that the content of the article be substantially accurate.
So viewed, the fair-report privilege is analogous to the doctrine of neutral reportage. In this case, the
Observer article reported the gist of what was in the court file.
JUSTICES CLIFFORD, HANDLER, POLLOCK and STEIN join in JUSTICE GARIBALDI's
opinion. JUSTICE O'HERN filed a separate concurring opinion. CHIEF JUSTICE WILENTZ did not
participate.
SUPREME COURT OF NEW JERSEY
A-
107 September Term 1993
JAMES COSTELLO,
Plaintiff-Appellant,
v.
OCEAN COUNTY OBSERVER, WHIT
ANDREWS and JOHN DOE, a
fictitiously named Defendant,
Defendants-Respondents.
Argued March l4, l994 -- Decided July 20, 1994
On certification to the Superior Court,
Appellate Division.
David B. Rubin argued the cause for appellant
(Rubin, Rubin, Malgran, Kaplan & Kuhn,
attorneys).
Gregory M. Harvey, a member of the
Pennsylvania bar, argued the cause for
respondent (Starkey, Kelly, Blaney & White,
attorneys; Therese A. Nestor, of counsel).
The opinion of the Court was delivered by
GARIBALDI, J.
This case involves a newspaper article describing
allegations contained in an unfiled complaint that a police
lieutenant fondled a woman while she was handcuffed during a
strip-search. We address whether the fair-report privilege
applies and whether the lieutenant is a public figure subject to
the actual-malice burden of proof.
In October 1990 Joseph Fisher, a supervising editor at the Ocean County Observer, assigned reporter Whit Andrews to investigate reports of possible misconduct by certain Seaside Heights police officers. Andrews, a 1989 college graduate, began working for the newspaper in April 1990. Fisher gave Andrews a docket number and told him to determine whether a "notice of claim" had been filed. After Andrews made several trips to the courthouse, on November 7, 1990, a judge's law clerk permitted Andrews to inspect a file with the specified docket number, titled Nicholas J. Guiliano v. Borough of Seaside Heights and James Magovern, III.
The file contained a pro se Order to Show Cause and an affidavit of Guiliano with several attached exhibits. In the Order, Guiliano complained that he had been arbitrarily denied discovery in connection with pending disorderly-conduct and obstructing-justice complaints filed against him in the Municipal Court of the Borough of Seaside Heights, that were scheduled for trial on August 14, 1990. Specifically, Guiliano sought the employment records of Patrolman Magovern from the Borough. Guiliano's affidavit stated that on May l7, l988, Patrolman Magovern had gone to Guiliano's home "with reference to a window of a neighboring building being broken," and had arrested Guiliano's female acquaintance, Elizabeth Fesl. Officer Magovern issued a summons at that time to Fesl for disorderly conduct and obstructing justice. Four months later, the police also issued a
summons to Guiliano for obstruction of justice in connection with
that incident.
Paragraphs 8 and 9 of Guiliano's affidavit state:
8. On or about sometime in January 1989, a Notice of
Tort Claim was filed with the attorneys[] for the
Borough and copied to the Defendants in the
proposed civil action. A true and exact copy is
attached hereunto as Exhibit "E".
9. Sometime subsequent a general form of release was
entered into by all parties with the exception of
Patrolman Magovern.
Although the affidavit described Exhibit E as a Notice of Tort Claim, the exhibit was actually a typewritten, unsigned, unfiled seventy-four page federal court complaint with 257 paragraphs, which had "DRAFT" stamped on it. In the complaint, Guiliano and Fesl assert claims against Seaside Heights and many of its police officers, including Lieutenant Costello. According to the complaint, Costello conducted an unlawful search of Fesl after she was arrested. The complaint states:
111. On May 17, 1988, Plaintiff was unlawfully arrested in the Borough of Seaside Heights, New Jersey and was physically taken to the Seaside Heights Municipal jail. Defendant-Costello took Plaintiff-Fesl to a separate room and she was told by Defendant-Costello that Costello, personally, would do a bodily search for contraband.
112. Plaintiff-Fesl refused and while handcuffed, Defendant-Costello pulled down the Plaintiff-Fesl's blouse,
already somewhat open, and instructed to Fesl to bend
over so that he may "frisk" her for weapons and or
contraband.
113. When she duly refused, Defendant-Costello, forcibly bent her over and proceeded to search and "feel up" the
Plaintiff-Fesl's genital and anal areas. Defendant-Costello also at this time fondled and breached the
Plaintiff-Fesl's breasts, all while Fesl was still
handcuffed.
114. When Fesl responded that this was blatantly illegal and
illegitimate, Costello replied, "what's the matter
don't you like it."
The draft complaint involved a separate action from the Order to
Show Cause, as evidenced by the different captions. The draft
complaint named Guiliano and Fesl as plaintiffs, but the Order to
Show Cause named only Guiliano. Fesl was not a party in the
Order to Show Cause proceeding, and the file that Andrews
consulted did not contain any affidavits or statements from her.
At his deposition, Andrews said that he did not know the
meaning of an Order to Show Cause, did not understand the
relationship of the attached exhibits to the Order to Show Cause,
and did not know the status of the matter. He also claimed to be
unaware that the Order to Show Cause had been returnable
September l4, l990, approximately six weeks before his visit.
Andrews does claim, however, that he attempted to contact sources
regarding the allegations contained in the draft complaint.
Andrews allegedly tried to communicate with Lieutenant
Costello, Officer Magovern, and other Borough officials on the
day he inspected the file, without success. He did not attempt
to communicate with Fesl or Guiliano. On the next day, November
8, 1990, Andrews telephoned the Borough's attorney, Ronald
Hoffman, and told Hoffman that in the Guiliano file he had found
a copy of a very lengthy proposed complaint arising out of the
May l7, l988, incident. He specifically mentioned the allegation
against Costello and stated his intention to write a story
describing Costello's alleged improprieties. Hoffman had two
conversations with Andrews that day. He prepared a file memo
that afternoon memorializing his telephone conversations with
Andrews.
The first conversation occurred at l:00 p.m. At that time,
Hoffman could recall only that complaints from the May l7, l988,
incident were pending in municipal court. However, he
specifically informed Andrews of the following regarding
Costello:
I indicated that I had no knowledge of that
allegation [Costello's alleged search of
Fesl] and further indicated that, to the best
of my knowledge, there were no indictable
criminal complaints, municipal court criminal
complaints or complaints of a disciplinary
nature with the Seaside Heights Police
Department involving that allegation. I
indicated that that information was totally
new to me and I knew nothing about it.
Andrews told Hoffman that he intended to publish the alleged
improprieties of Costello. Hoffman then related:
I cautioned Mr. Andrews regarding the
possibility of libel/slander. I indicated to
him that I was certain that the Observer
[sic] had an attorney on staff and that
perhaps it would be a good idea to review the
contents of the story with said attorney
prior to publishing same in the newspaper.
Mr. Andrews responded by saying that they
were on a very tight budget, had no attorney
on staff and were anxious to have the story
printed so that they could get the story into
print prior to the Asbury Park Press getting
the story. He indicated that he would run
the proposed story by his editor prior to the
printing. I indicated that I would call him
back later in the afternoon and advise him
whether the Borough had any comment.
Hoffman called Andrews at 4:00 p.m. that day. According to
Hoffman's file memo,
I also indicated that the [police] reports
and [witness] statement made no reference to
Lieutenant Costello. Mr. Andrews agreed. We
also commented that the arrest report had
Sergeant Tate as the officer in charge at the
time the incident took place rather than
Lieutenant Costello. It was confirmed that
there were no complaints either way involving
Lieutenant Costello, particularly of a sexual
abuse nature. It was further agreed that the
lengthy pleading prepared by Mr. Guiliano had
not been filed with any court and that the
statute of limitations regarding the
allegations contained therein had run. I
terminated my conversation with Mr. Andrews
and was then advised by William T. Hiering,
Jr. that, while I was at my deposition,
Andrews had called leaving a message that he
had reviewed this matter with his editor and
that the story was going to go to print
whether we got back to him or not.
Andrews' story appeared in the November 9, 1990, edition of
the Ocean County Observer. The front page of the Observer
contained the caption, "Woman alleges brutality," and referred
readers to page A3. The headline on page A3, written by one of
Andrews' editors, read, "Complaint alleges Seaside cop fondled
woman." The article stated in part:
A Lakehurst woman is alleging she was
handcuffed, beaten and improperly strip-searched by police officers in a May 1988
incident here.
Elizabeth Fesl claims in papers filed in state Superior Court that she was smashed
into a brick wall and that a male police
lieutenant illegally fondled her breast and
genitalia because she broke a window.
The police report from the incident and a witness' account claim that Fesl attacked the police officer and that he only defended himself and used acceptable force to subdue her.
The claim is one of a series of
complaints and notices of intent to sue
against the borough's Police Department,
which has come under fire in recent months
from people alleging police brutality.
The strip-search allegations are not
addressed in the arrest report.
According to the court papers, Patrolman
James Magovern, III and two other officers
were called to a scene of a fight between
Fesl and her sister at about 2:30 a.m. May
17, 1990 [sic].
The claim following the incident was
filed by Nicholas Guiliano, a borough
resident, on the woman's behalf. The claim
is a notice of intent to sue in the U.S.
District Court on the grounds of deprivation
of civil rights.
The claim also has been filed as an
exhibit in Guiliano's request for a Superior
Court order to demand some of Magovern's
employment records from the borough.
Seaside Heights Borough Attorney Ronald
E. Hoffman had no comment when asked about
the notice of intent or pending litigation.
* * * *
When Fesl got to the police station, the
claim says, Lt. James Costello forced her to
bend over and "proceeded to search and `feel
up' the Plaintiff-Fesl's genital and anal
areas . . . [he] fondled and breached the
Plaintiff-Fesl's breasts, all while Fesl was
still handcuffed."
"When Fesl responded that this was
blatantly illegal and illegitimate," the
claim says, Costello replied, "What's the
matter, don't you like it?"
No complaints were signed against
Costello in connection with the incident,
however, despite a lengthy sheet of charges
Guiliano and Fesl filed against Magovern.
A reprint of the entire article appears in the appendix of this
opinion.
On March 12, 1991, Costello sued Andrews and the Observer
for defamation. Costello argues that the article erroneously
states or implies that Fesl was asserting a complaint against
him. Identifying a possible motive for the negative story,
Costello noted that the Seaside Heights Police had arrested
Andrews' editor, Fisher, for driving while intoxicated in the
previous year, which had resulted in suspension of Fisher's
driver's license. Defendants argue that no proof of Fisher's
conviction is on record; plaintiff claims he did not produce
record proof because the issue was not in dispute.
On August 4, 1992, defendants filed a motion for summary
judgment on the ground that the article was protected by the
fair-report privilege and that Costello had failed to establish
actual malice in the writing and publication of the article.
Costello filed a cross-motion for partial summary judgment on the
ground that the story was defamatory per se. He also asked the
court to strike the fair-report privilege as a matter of law.
The trial court denied both parties' motions for summary
judgment. In an unpublished opinion, the Appellate Division
reversed and remanded for entry of summary judgment in favor of
defendants, concluding that the fair-report privilege applied and
that Costello had failed to establish actual malice by clear and
convincing evidence. We granted certification, l
34 N.J. 559
(1993).
"[T]he fear of [being sued for libel] can inhibit comment on matters of public concern." Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 157 (1986). Summary judgment is therefore an important tool for disposing of non-meritorious libel lawsuits. A court may enter summary judgment only if "there is no genuine issue as to any material fact . . . [and] the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. In our review of the defendants' summary-judgment motion, "we view the facts in the light most favorable to the plaintiff, giving [plaintiff] the benefit of all favorable inferences that may legitimately be drawn from the record." Dairy Stores, supra, 104 N.J. at 135.
We begin our analysis by determining whether the fair report privilege protects defendants from liability. We first consider the policies underlying both the law of defamation and the law of privilege. "The law of defamation embodies the important public policy that individuals should generally be free
to enjoy their reputations unimpaired by false and defamatory
attacks." Swede v. Passaic Daily News,
30 N.J. 320, 331 (1959).
Privileges that restrict recovery for defamation reflect the
competing "paramount public interest [in] permitting persons to
speak or write freely without being restrained by the possibility
of a defamation action." Ibid. They are "designed to protect
speech in those narrowly defined instances in which the public
interest in unrestrained communication outweighs the right of
redress." Fees v. Trow,
105 N.J. 330, 336 (1987); see also
Erickson v. Marsh & McLennan Co.,
117 N.J. 539, 564 (1990)
(stating that qualified privileges exist because "the legitimate
public or private interest underlying the publication outweighs
the important reputation interests of the individual").
Generally, the law of defamation provides redress against a
party that reprints defamatory statements. A claim that
"information [was] obtained from another source will not relieve
[defendants] of liability." Lawrence v. Bauer Publishing &
Printing Ltd.,
89 N.J. 451, 461, cert. denied,
459 U.S. 999, l
03 S. Ct. 358,
74 L. Ed.2d 395 (1982). In most instances,
therefore, to republish a defamatory statement, the reporter or
newspaper must verify that a statement was spoken, and also that
the substance of the statement is true. Ibid. The fair-report
privilege is an exception to the general rule that imposes
liability for republication of a defamatory statement. Swede,
supra, 30 N.J. at 332-33; Rogers v. Courier Post Co.,
2 N.J. 393,
402 (1949).
The fair-report privilege's purpose is "to assure that
people who report on official releases about public concerns will
not be held responsible for the contents of the reports."
Schiavone Constr. Co. v. Time, Inc.,
847 F.2d 1069, 1085 (3d Cir.
1988). The privilege applies to reports of defamatory statements
made in judicial and other official proceedings. Protection for
such republication furthers the public interest "that information
be made available as to what takes place in certain kinds of
judicial, legislative, and other public proceedings." Prosser
and Keeton on Torts § ll5 (5th ed. l984). The underlying
rationale is that "any member of the public, if he were present,
might see and hear for himself [statements made at a public
proceeding], so that the reporter is merely a substitute for the
public eye." Ibid. In Rogers, supra, 2 N.J. at 402, we defined
the fair-report privilege as follows: "[a] full, fair and
accurate report of a judicial proceeding is qualifiedly
privileged, although the report contains matters that would
otherwise be defamatory and actionable, and no action will lie
therefor except on proof of malice in making it."
For the privilege to apply, the court must first determine
whether the report is a full, fair, and accurate account of the
official proceeding. See Bock v. Plainfield Courier-News,
45 N.J. Super. 302, 307 (App. Div. 1957). The determination of
whether a report is fair and accurate is an objective one.
Restatement (Second) of Torts, § 6ll comment f (l976) (providing
that report of public proceedings should not convey erroneous
impression to those who read or hear it). However, for the
privilege to apply, "[i]t is not necessary that [the account] be
exact in every immaterial detail . . . . It is enough that it
conveys to the persons who read it a substantially correct
account of the [contents of the official document]." Ibid.
Thus, the fair-report privilege provides protection even though
an article may not be accurate in every conceivable aspect.
In addition to being accurate, a report must also be fair.
A report that is accurate may not be edited and deleted in a way
that renders its contents misleading. Fairness requires that
although the report need not be exhaustive, "it is necessary that
nothing be omitted or misplaced in such a manner as to convey an
erroneous impression to those who hear or read it . . . ." Ibid.
Although a reporter is allowed to make factual errors and
omissions, the fair-report privilege will not protect a story if
the errors and omissions mislead readers.
The case law that addresses the fair-report privilege is
sparse but instructive. In Reilly v. Gillen,
176 N.J. Super. 321
(App. Div. 1980), the defendant had published a twenty-three-year-old news article that described a corporation's lawsuit
against one of its employees for defrauding the company. The
article failed to state that the complaint had been voluntarily
dismissed and that plaintiff had been permitted to return to work
at the company. The court held that the "truth of an alleged
libel must be measured `as of the time of the defamatory
publication.'" Id. at 327 (quoting Restatement (Second) of
Torts, supra, § 581A comment g). The Appellate Division
concluded that the privilege did not apply because by failing to
explain the case's ultimate disposition, the article erroneously
insinuated that plaintiff was guilty of wrongdoing. Ibid.
Likewise, a reasonable reader of the Observer article would
conclude that Fesl was actively pursuing her harassment claim
against Officer Costello, although Ms. Fesl had not filed the
complaint. The use of the present tense in the headline and
opening paragraphs indicate a pending action: "Complaint alleges
Seaside cop fondled woman," "A Lakehurst woman is alleging,"
"Fesl claims in papers filed in Superior Court," "The claim is
one of a series of complaints." In addition, although the
article states that "no complaints have been signed" against
Officer Costello, it also states that "[t]he claim . . . was
filed by Nicholas Guiliano . . . on the woman's behalf."
(Emphasis added.)
The article is not an accurate report of a judicial
proceeding, because a reader who reviews the entire article
receives conflicting information regarding the status of the
matter; the article is internally inconsistent, misleading, and
confusing. The story gives the overall impression that
litigation against Costello concerning Fesl's claim is pending.
The "corrective" statements (that no complaint had been signed,
etc.) are unsuccessful in making the story less misleading. Such
confusing news coverage does not serve the legitimate public
interest of accurately informing readers about official
proceedings.
Schiavone, supra, 847 F.2d. at 1087, illustrates that an
article must be not only accurate but also fair for the privilege
to apply. In that case, the Third Circuit applied New Jersey law
and found that the fair-report privilege did not apply to an
article that was based on a confidential memorandum of a former
FBI chief that mentioned the plaintiff's name several times in
connection with the disappearance of former teamsters' union boss
Jimmy Hoffa. Id. at 1089. The article accurately stated that
the plaintiff's name had been mentioned in connection with the
disappearance of Hoffa. But, as in Reilly, it failed to mention
a significant fact: the memo had stated that the appearance of
the plaintiff's name did not suggest any criminality or
organized-crime associations. Id. at 1072. The court found that
"Time's omission presents a clear example of an unfair report
that does not deserve the qualified privilege to reproduce a
libel." Id. at 1088.
Likewise, the Observer article's omission of significant
facts causes the account to be misleading and unfair. For
example, Andrews failed to report that Exhibit E was a complaint
that had never been filed; that the pending Superior Court matter
was Guiliano's case; that neither Fesl or Costello were parties
to that action; and that at the time the article was published,
Costello was legally immune from any claim that Fesl could have
asserted.
More importantly, the article, and especially its headline,
make Officer Costello the focus of the court proceeding. The
emphasis of the article is that Fesl is suing Officer Costello
for the violation of her civil rights in strip-searching her and
that her allegations were part of the overall investigation into
police brutality by the Seaside Heights police department.
Neither of those assertions is true. Guiliano's pro se Order to
Show Cause sought records from the Borough regarding Officer
Magovern, not Lieutenant Costello. Furthermore, Guiliano's
affidavit stated that "a general form of release was entered into
by all parties with the exception of Patrolman Magovern." The
draft complaint annexed to Guiliano's affidavit therefore was
relevant to the pending judicial proceeding only to the extent
that it involved Officer Magovern.
Nonetheless, defendants seek to invoke the fair-report
privilege for an article focusing on Officer Costello, not
Officer Magovern. The limited judicial proceeding, a pretrial
discovery motion for information for police records, does not
concern Officer Costello. Yet, the article portrays Officer
Costello in a most offensive and sensational way -- a policeman
who unjustifiably strip-searches women. Such a portrayal surely
will draw the public's attention and sell papers. The portrayal,
however, is highly unfair to Officer Costello and is an
inaccurate representation of the court proceeding in which
Guiliano filed the Order to Show Cause. Indeed, Officer Costello
was not even a party to that pending proceeding.
The article fails to meet the fair-report privilege's
purpose, to be the eyes and ears for those who could have
reviewed but chose not to review the matters on public record
themselves. The privilege does not give newspapers license to
garble the facts. "The news story may be lively and filled with
human interest, but in all matters [that] materially affect its
purport it must be correct, for the privilege does not cover
false statements of fact nor extend to distorted accounts."
Bock, supra, 45 N.J. Super. at 307.
The concurring opinion asserts that the fair-report
privilege issue centers on "whether a statement [that Costello
subjected Fesl to indignities] appeared in judicial proceedings."
Such an interpretation would eliminate the "full, fair and
accurate" requirements from the fair-report privilege. As the
name implies, the fair-report privilege does not protect a
newspaper article unless that article is fair. Andrews' article
was not fair because the quoted statements were not, as the
article claims, part of a continuing complaint. Furthermore, the
article, through its headline, focuses on complaints against
Costello when the affidavit accompanying the complaint indicates
that only Magovern remained as a party to the proceeding.
Defendants do not enjoy the privilege by merely copying
unsupported statements contained in court documents. The
reporter is bound to explain the context of those statements in a
fair and accurate manner. Because the article fails to convey
"fully, fairly and accurately" the status of a pending judicial
proceeding, we determine that defendants do not enjoy the
protection of the fair-report privilege.
We note that an alternative basis might exist for finding
that the privilege does not apply. The privilege requires that
the news report cover a judicial proceeding. In Rogers, supra, we
determined that reports on "judicial proceedings" were privileged
only if the defamatory statements occurred during the official
proceeding itself. The privilege did not apply to an article
describing statements made in the courtroom and judge's chambers
after the court had adjourned. 2 N.J. at 402-03; see also Devlin
v. Greiner,
147 N.J. Super. 446, 453 (Law Div. 1977) (observing
that "statements made in the course of judicial proceedings, but
not relevant thereto, are excluded from the privilege").
The privilege also does not apply to
[t]he publication . . . of the contents of
preliminary pleadings such as a complaint or
petition, before any judicial action has been
taken is not within the rule stated in this
Section. An important reason for this
position has been to prevent implementation
of a scheme to file a complaint for the
purpose of establishing a privilege to
publicize its content and then dropping the
action.
[Restatement (Second) of Torts, supra,
"[I]t is the prevailing view, with some few courts to the
contrary, that a pleading or a deposition filed in a case but not
yet acted upon may not be reported under the claim of privilege."
Prosser & Keeton on Torts, supra, at § 115. To rule otherwise
would promote the filing of lawsuits that would be promptly
discontinued once the goal of public defamation or even extortion
were achieved. Because the privilege does not apply to newly
filed complaints, "[a] mere contemplated lawsuit not yet begun is
clearly not enough" to trigger the privilege's protections.
Ibid.
Under that reasoning, the unfiled and unsigned federal-court
pleading alone would not be entitled to the fair-report
privilege. In addition, we doubt that that rule could be
overcome merely by filing the draft complaint as an exhibit to an
affidavit in a separate proceeding that involved neither Fesl nor
Costello as parties. The purpose of the fair-report privilege is
not to permit republication of any paper that is filed with a
court. Such a broad application of the rule would invite
substantial abuse.
Neither party, however, has raised that issue. Furthermore
given our holding that the fair-report privilege does not apply
because the article was not a "full, fair and accurate" report,
we need not resolve that thorny issue.
Because the article fails to describe the official judicial proceeding fairly, fully, and accurately, the privilege is defeated. Therefore, the general fault standards govern. Under those standards, a plaintiff can prevail by showing either negligence, if the plaintiff is a private figure, or actual malice, if the defendant is a public figure. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed.2d 686, 706 (1964). Whether Costello is a public figure is "a question of law for the court's determination." Lawrence, supra, 89 N.J. at 462.
Although New York Times v. Sullivan involved an elected city commissioner, subsequent cases have concluded that non-elected government employees can be public figures for the purposes of a defamation suit. E.g., Henry v. Collins, 380 U.S. 356, 357, 85 S. Ct. 992, 993, l 3 L. Ed.2d 892, 893 (l965) (holding that chief of police is public official); Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S. Ct. 633, 636, 28 L. Ed.2d 45, 50 (1971) (accepting lower courts' determination that city's Deputy Chief of Detectives was public official).
The "`public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or
control over the conduct of governmental affairs." Rosenblatt v.
Baer,
383 U.S. 75, 85,
86 S. Ct. 669, 675,
15 L. Ed.2d 597, 605
(1966). In New Jersey, courts have consistently found that
police officers are public officials and thus have applied the
actual-malice standard to police officers acting in their
official capacities. See Marchiano v. Sandman,
178 N.J. Super. 171, 174 (App. Div.), certif. denied,
87 N.J. 392 (l98l)
(determining that, as plaintiff conceded, police officers are
public officials); La Rocca v. New York News, Inc.,
156 N.J.
Super. 59, 62 (App. Div. 1978) (stating "we have no doubt" that
police officers here were public officials); Scelfo v. Rutgers
Univ.,
116 N.J. Super. 403, 412-13 (Law Div. 1971) (holding that
police officers "whose powers are constitutionally and
statutorily derived" are public officials).
A police officer on a beat
is the member of the department who is most visible to
the public. He possesses both the authority and the
ability to exercise force. Misuse of his authority can
result in significant deprivation of constitutional
rights and personal freedoms, not to mention bodily
injury and financial loss. The strong public interest
in ensuring open discussion and criticism of his
qualifications and job performance warrant the
conclusion that he is a public official.
[Gray v. Udevitz,
656 F.2d 588, 59l
As a police lieutenant, Costello's responsibilities to the public exceed those owed by officers on patrol. In addition to being visible to the public and possessing authority to use force, a lieutenant supervises other officers. Although Costello
was not in charge on the night Fesl was arrested, he would be in
charge of police operations at other times. The public therefore
has a valid interest in Costello's qualifications and on-the-job
behavior as a lieutenant. "A wholesome respect for the law by
those who are enforcing the law is . . . of great importance in a
society that is dedicated to the preservation of individual human
dignity." Prosser & Keeton on Torts, supra, at §113.
We thus determine that Costello, a police lieutenant who is
challenging an article purporting to describe his official
conduct, is a public official and must meet the actual-malice
standard.
The heightened actual-malice standard exists for public officials because otherwise "would-be critics of official conduct may be deterred from voicing their criticism." Sullivan, supra, 376 U.S. at 279, 84 S. Ct. at 725, 11 L. Ed. 2d at 706. Without the actual-malice standard, critics of official conduct might refrain from voicing their observations, "even though [those observations are] believed to be true and even though [they are] in fact true, because of doubt whether [they] can [prove them] in court or fear of the expense of having to do so." Ibid. Because Costello is a public official, we must determine whether Costello's proof of actual malice is sufficient to survive defendants' motion for summary judgment.
To survive summary judgment, a public official must prove
that the statements were published either with knowledge that
they were false or with reckless disregard of whether they were
false. Id. at 279-80, 84 S. Ct. at 726, 11 L. Ed.
2d at 706. To
determine whether a genuine issue of material fact exists
regarding actual malice, a court must consider whether the
plaintiff has produced the "quantum and quality of proof"
necessary under the New York Times v. Sullivan standard.
Schiavone, supra, 847 F.
2d at 1089. The plaintiff must
demonstrate that a reasonable jury could conclude that "clear and
convincing evidence" exists that the defendants published the
article with actual malice. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 254-55,
106 S. Ct. 2505, 25l3,
91 L. Ed.2d 202,
2l5-l6 (1986).
The actual-malice standard is subjective. St. Amant v.
Thompson,
390 U.S. 727, 731, 88 S. Ct. l323, l325,
20 L. Ed.2d 262, 267 (1968). Accordingly, the inquiry concerns Andrews'
state of mind. To find actual malice, the factfinder must
determine that the defendant in fact entertained serious doubts
about the truth of the statement or that defendant had a
subjective awareness of the story's probable falsity. Schiavone,
supra, 847 F.
2d at 1089.
Rarely will direct evidence exist to meet that burden.
Instead, a plaintiff might show actual malice by demonstrating
that the defendant had "obvious reasons to doubt the veracity of
the informant or the accuracy of his reports." St. Amant, supra,
390 U.S. at 732, 88 S. Ct. at 1326, 20 L. Ed.
2d at 268. Or the
plaintiff might show that the defendant had found internal
inconsistencies or apparently reliable information that
contradicted the story's libelous assertions but nevertheless had
published the article. Curtis Publishing Co. v. Butts, 388 U.S.
l30, 161 n.23, 87 S. Ct. l975, 1995 n.23, l
8 L. Ed 2d l094, lll5
n.23 (1967) (plurality opinion). Although failure to investigate
fully will not by itself be sufficient to prove actual malice, a
failure to pursue the most obvious available sources for
corroboration may be clear and convincing evidence of actual
malice. Rodney A. Smolla, Law of Defamation § 3.18 [1], at 3-42
(1986).
Because the issue of a defendant's state of mind "does not
readily lend itself to summary disposition," courts are wary of
disposing of cases involving actual malice through summary
judgment. Maressa v. New Jersey Monthly,
89 N.J. 176, 197 n.10,
cert. denied,
459 U.S. 907, l
03 S. Ct. 2ll,
74 L. Ed 2d l69
(l982). Plaintiffs nonetheless must produce substantial evidence
to survive a motion for summary judgment. Although courts
construe the evidence in the light most favorable to the non-moving party in a summary judgment motion, the "clear and
convincing" standard in defamation action adds an additional
weight to the plaintiffs' usual "preponderance of the evidence"
burden. Smolla, supra, § 3.07, at 3-20.
Despite the plaintiff's heavy burden, the Court found actual
malice in Curtis Publishing, supra,
388 U.S. 130, 87 S. Ct. l975,
l
8 L. Ed 2d l094. In that case only one source existed for a
story that charged Coach Wally Butts with having fixed a football
game. The newspaper knew that this source had criminal charges
on his record. The Saturday Evening Post failed to consult other
potential sources of information, although allegations that the
story was false had been brought to the Post's attention.
Furthermore, the Post's policy of "sophisticated muckraking" may
have resulted in a stretching of standards.
Similarly, in Schiavone, supra, 847 F.
2d at 1091, sufficient
evidence of actual malice existed for the court to uphold the
district court's denial of summary judgment. As previously
mentioned, that case involved a Time magazine article that quoted
an FBI memo linking the plaintiff's construction company with the
disappearance of former union boss Jimmy Hoffa. The article
neglected to state that the memo had concluded that the inclusion
of the plaintiff's name in the Hoffa file did not "suggest[ ] any
criminality, or organized crime associations." Id. at 1072.
The court found three reasons why a jury could conclude that
the plaintiff had proven actual malice by the clear-and-convincing standard. First, a jury could find that "four
independent sources with good bases for knowledge" had warned the
defendant that the libelous information was erroneous. Id. at
l09l. Second, a jury might disbelieve the defendant's own
explanation for omitting the exculpatory information in the
article. Id. at l092. Third, the jury could determine that the
omitted information "cast a very different and more benign light
on the facts" reported, and by so altering the message of the
memo, Time may have intended that false implication. Ibid.
Although the court recognized that the evidence could be
interpreted differently, the court found that if the evidence
were interpreted in the plaintiff's favor, a jury could
reasonably determine that the plaintiff had proved actual malice
by the clear-and-convincing standard.
Sufficient evidence does not exist, however, when the only
evidence offered is that the defendants "should have known the
articles were false, or they at least should have doubted their
accuracy." Lawrence, supra, 89 N.J. at 457. In Lawrence, the
plaintiffs challenged a newspaper article about alleged
improprieties in obtaining signatures for a petition to oppose
construction of a new firehouse in Rahway. Id. at 455. A source
in the city administration had said that the city prosecutor was
investigating the possibility of forgery in petitions. The
defendants assumed that the plaintiffs, Lawrence and Simpson,
would be investigated because they were responsible for
witnessing some petitions. Id. at 455-56, 467. The article was
entitled, in part, "City Attorney rules association petitions
improper; forgery charges may loom for Simpson." Id. at 456.
The article erroneously stated that the city prosecutor had been
asked to take action against Lawrence and Simpson, and that a
case would be based on forgery and false swearing of oaths and
affidavits. Ibid.
We determined that only subjective evidence will satisfy the
actual-malice burden:
the liability question is not one of
reasonableness when public figures and media
defendants are involved. Rather, the focus
of the `actual malice' inquiry is on a
defendant's attitude toward the truth or
falsity of the publication, on his subjective
awareness of its probable falsity, and his
actual doubts as to its accuracy.
We characterized the assumption that Lawrence was being investigated a "misconception" and a "careless and perhaps irresponsible account" of the information the paper had received from its informant in City administration. Id. at 468. But that evidence was insufficient to show that the defendants had known that the articles were false or that they had actually doubted their accuracy.
In Schwartz v. Worrall Publications, Inc., 258 N.J. Super. 493, 500-03 (App. Div. 1992), the plaintiff also failed to carry the burden of proving actual malice. That case involved an article that erroneously stated that the plaintiff was the subject of an investigation by the State Commission of Investigation for receiving allegedly excessive legal fees by the State School Boards Association. The defendant denied knowing that the article was false, and the Appellate Division could find
no evidence in the record to contradict that asserted belief.
The court determined that the article was a "mish-mash . . .
express[ing] obvious confusion and a lack of understanding of the
subject." Id. at 503.
Applying the actual-malice standard through the prism of
summary judgment, Schiavone, supra, 847 F.2d. at 1091, we find
that even when considering the evidence in the light most
favorable to Lieutenant Costello, a reasonable factfinder could
not find "clear and convincing" evidence of Andrews' actual
malice. See Liberty Lobby, supra, 477 U.S. at 255, 106 S. Ct. at
2513-14, 91 L. Ed.
2d at 216.
In an effort to demonstrate actual malice, Costello points
to the fact that Andrews apparently ignored the affidavit
accompanying the draft complaint that specifically stated that
all parties except Officer Magovern had entered releases when
reporting that the complaint was presently pending. Andrews,
however, points to evidence showing why he believed the complaint
was pending. For example, Guiliano's affidavit described the
draft complaint as a filed Notice of Claim that had been
forwarded to each of the parties. The Observer sent Andrews to
the courthouse specifically to find the Notice of Claim for the
specified docket number.
Costello also claims that before sending the article for
publishing, Andrews should have conducted a more thorough
investigation. He at least should have attempted to contact Fesl
or Guiliano. Andrews did, however, attempt to communicate with
Costello, Officer Magovern, and other Borough officials, and he
did call Ronald Hoffman, the Borough's attorney, for verification
of the status of the complaint. Although Hoffman states in his
certification that he informed Andrews that the statute of
limitations had expired on claims against Lieutenant Costello, he
also states that by the time he conveyed that information to
Andrews, the newspaper may have already begun printing the
article.
Although Costello urges that a fuller investigation was
required, failing to investigate more fully "merely establishes
possible negligence -- it does not establish subjective knowledge
of falsity or serious doubt about the truth of the story."
Smolla, supra, § 3.17, at 3-40.2. Costello fails to point to any
proof suggesting that Andrews actually doubted that Fesl's claim
was true or doubted that the complaint was pending.
At most, defendants' article demonstrates a confused
understanding of a court file. The article correctly noted that
the complaint had been "filed" but not signed. The article fails
to explain that the complaint was not filed in its own right, but
was an exhibit in a separate proceeding. Andrews was a new
reporter. He had been graduated from college only the year
before and had worked for the paper for only seven months when he
wrote this article. We do not mean to imply that inexperience is
an excuse for shoddy reporting. However, Andrews' inexperience
must be considered in determining whether his failure properly to
understand the documents in a court file was a result of actual
malice or negligence. A plaintiff must demonstrate more than an
erroneous interpretation of the facts to demonstrate actual
malice. Time v. Pape,
401 U.S. 279, 291,
91 S. Ct. 633, 639,
28 L. Ed.2d 45, 54 (1971). Although we do not condone the
erroneous reporting of information in court files, we realize
that journalists are not lawyers by trade. Errors in reports on
court proceedings are bound to occur from time to time, and the
First Amendment protects those errors as long as they are not
recklessly or intentionally made.
Because Costello has not produced "clear and convincing"
evidence of actual malice, i.e., that defendants published the
article with knowledge of the article's falsity or with reckless
disregard for whether the article was true or false, we remand
for entry of an order granting defendants summary judgment.
We recognize the important role journalists play in
disseminating news. We recognize that newspapers face
competitive pressure to investigate stories quickly and to
"scoop" other newspapers. Nonetheless, shoddy and careless
reporting that leads to the dissemination of false or misleading
information is detrimental to the enlightenment of a free
society. A newspaper's greatest reward is the public's trust.
Defendants today narrowly escape liability, but they do not
escape the loss of credibility that results from slipshod
journalism.
The judgment of the Appellate Division is affirmed.
Justices Clifford, Handler, Pollock, and Stein join in this
opinion. Justice O'Hern has filed a separate concurring opinion.
Chief Justice Wilentz did not participate.
SUPREME COURT OF NEW JERSEY
A-
107 September Term 1993
JAMES COSTELLO,
Plaintiff-Appellant,
v.
OCEAN COUNTY OBSERVER, WHIT
ANDREWS and JOHN DOE, a
fictitiously named Defendant,
Defendants-Respondents.
______________________________
O'HERN, J., concurring.
I concur in the judgment of the Court. I believe, however,
that the Court has more closely circumscribed the fair-report
privilege than the law requires.
The Court is justly troubled by the reporter's
misinterpretation of the documents, particularly the reporter's
use of the present tense in this sentence appearing in the
newspaper article: "Elizabeth Fesl claims in papers filed in
state Superior Court * * * that a male police lieutenant
illegally fondled her * * * ." Except for the tense of the
sentence, however, that is the truth of the matter. Although
Fesl never did pursue her complaint, the reporter explained that
"[n]o complaints were signed against Costello in connection
with the incident, however, despite a lengthy sheet of charges
* * * ."
The story was not unbalanced to the extent that contrary
information discrediting Fesl was available. The story reported
that one of the other involved police officers claimed that Fesl
had eluded him and fellow officers. It recites that Fesl "tried
to strike him with her open hand." The account also includes
statements of an independent witness: "She [Fesl] started
swinging at him[.] * * * She was beating the officer
. . . she struck him."
The young reporter assigned to the case may not have fully
grasped the import of the various documents. The proceeding was
somewhat tangled. The file in which the reporter found the
statements concerned a Superior Court proceeding that was
ancillary to a pending municipal-court proceeding in which
Guiliano was a defendant. Both Guiliano and Fesl had been
defendants in municipal court as a result of the 1988 arrest
incident as well as potential plaintiffs in a civil proceeding
arising therefrom. Guiliano also filed criminal complaints
against a Seaside Heights police officer. No one could easily
explain in a few words the relationship of those varied
pleadings.
In Time, Inc. v. Pape,
401 U.S. 279,
91 S. Ct. 633,
28 L.
Ed.2d 45 (1971), the Supreme Court explained that a reporter's
misunderstanding of a government document charging patterns of
police brutality should not be a basis for imposition of damages.
In that case, the Time magazine article reported as a charge by a
commission investigating police brutality what was in literal
terms a description by the commission of allegations in a
complaint by a plaintiff in a civil-rights action. The police
official, subjected to the criticism of police brutality,
complained of the misinterpretation. The Supreme Court wrote:
"New York Times [v. Sullivan,
376 U.S. 254,
84 S. Ct. 710,
11 L.
Ed.2d 686 (1964),] was premised on a recognition that, as
Madison put it, `Some degree of abuse is inseparable from the
proper use of every thing; and in no instance is this more true
than in that of the press.'" 401 U.S. at 290, 91 S. Ct. at 639,
28 L. Ed.
2d at 53 (quoting 4 J. Elliot's Debates on the Federal
Constitution 571 (1876)).
The Court repeated the theme of New York Times:
"A rule compelling the critic of official
conduct to guarantee the truth of all his
factual assertions * * * leads to . . .
`self-censorship.' * * * [W]ould-be critics
of official conduct may be deterred from
voicing their criticism, even though it is
believed to be true and even though it is in
fact true, because of doubt whether it can be
proved in court or fear of the expense of
having to do so."
[Id. at 290, 91 S. Ct. at 639-40, 28
L. Ed.
2d at 53-54 (quoting New York
Times, supra, 376 U.S. at 279, 84
S. Ct. at 725, 11 L. Ed.
2d at 706).]
The Court then wrote:
These considerations apply with even greater
force to the situation where the alleged
libel consists in the claimed
misinterpretation of the gist of a lengthy
government document. Where the document
reported on is so ambiguous as this one was,
it is hard to imagine a test of "truth" that
would not put the publisher virtually at the
mercy of the unguided discretion of a jury.
28 L. Ed. 2d at 54.]
Hence, courts should accord some degree of liberality in evaluating a claimed misrendering of the gist of legal proceedings. For example, how might a newspaper publish or a broadcaster transmit, without comment, a portion of the daily testimony in a sensational criminal trial when that segment includ