NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4797-99T5
SALLY STARR GRAY, a/k/a
SALLY STARR,
Plaintiff-Appellant,
v.
PRESS COMMUNICATIONS, LLC, and
JEFF DIMINSKI and
LEIGH JACOBS,
Defendants-Respondents.
Submitted April 25, 2001 - Decided July 2,
2001
Before Judges Keefe, Eichen and Steinberg.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, L-8387-98.
Sagan & Greenberg, attorneys for appellant (B.
Adam Sagan, of counsel; Jeffrey Zajac, on the
brief).
McCarter & English, attorneys for respondents
(Richard M. Eittreim, of counsel; Katie A.
Gummer and Eric D. Sherman, on the brief).
The opinion of the court was delivered by
STEINBERG, J.A.D.
Plaintiff Sally Starr Gray appeals from an order granting
summary judgment in favor of defendants Press Communications,
L.L.C., Jeff Diminski, and Leigh Jacobs. The order resulted in the
dismissal of the complaint for defamation that she had filed
against them. We reverse.
In support of their motion for summary judgment, defendants
filed a biographical profile of plaintiff. According to that
profile, plaintiff began her entertainment career, in radio, in the
1940's. She served as the regional voice of the Pepsi-Cola Company
doing all of its commercial spots. Eventually, she commenced
performing on radio full-time. In 1950, she commenced hosting a
children's television program in Philadelphia. The show lasted
through 1972, and featured cartoons, live acts, as well as personal
appearances from Roy Rogers, Dale Evans, Dick Clark, Jerry Lewis,
Tim Conway, Jimmy Durante, Nick Adams, the Three Stooges, and
others. At her deposition, she said she also completed one
personal appearance per day, and up to three such performances on
Saturdays. In addition, she said at her deposition that in the
early 1980's, she re-entered the personal appearance market, after
she had moved back to the Delaware Valley area from Florida, and
began to make appearances on behalf of businesses and charities.
Moreover, she said she participated in various community
organizations. For example, she was on the Board of Directors of
what she referred to as a "No-Kill Animal Shelter" as well as the
Alzheimer's Foundation. She also said she did appearances for the
Children's Miracle Network, Manna, which was described as an
organization that served meals at home to people suffering from
AIDS. She also did personal appearances for the AIDS Foundation.
Additionally, she has appeared on behalf of many charitable
organizations.
She also stated that she appeared in the Philadelphia Gay
Pride Parade, where her participation was limited to riding on the
back of a convertible and waving to people. Additionally, she
made several paid appearances at an outdoor festival in
Philadelphia, held in connection with the Gay Pride festivities.
At the time of the incident that gave rise to this litigation,
defendant Jeff Diminski was the co-host of an afternoon, call-in
radio program, on FM 101.5, a New Jersey radio station. Press
Communication, LLC, was the licensee of 101.5. Jacobs was the
program director.
At his deposition, Diminski said the program was "largely,
while topical and newsie, very entertainment driven." He defined
entertainment driven as "[n]on-political, not so much serious
debate of issues, non-public affairs, more humor-based." He and
his co-host, Bill Doyle, operated under guidelines, provided by the
station, to appeal to an audience between the ages of twenty-five
to fifty-four, and focused their discussion on
things that were going on in New Jersey, both
out of the news, as well as just life-style
things like parking disputes at a New Jersey
mall during Black Friday, the day after
Thanksgiving. And to do it with an eye toward
a younger audience, meaning something fresh,
something funny, little edgy, but certainly
within certain guidelines. As far as taboo,
we were sort of told, a dead end street was
never to talk about gun control or abortion
and it's getting much more public affairs kind
of thing.
On July 24, 1998, the show was centered on children's
television programs and callers were asked to discuss their
childhood, or name their children's favorite shows. The transcript
of the relevant portions of the program that gave rise to this
lawsuit, which was furnished to the motion judge, reveals that a
person named Sally called in to give the name of her two favorite
shows, and the following exchange occurred:
SALLY: Two shows, Sally Starr Show.
DIMINSKI: That was the lesbian cowgirl I
think.
SALLY: Yeah.
DOYLE: Yeah. And what. What?
DIMINSKI: The lesbian cowgirl, Sally Starr.
SALLY: Oh, you're sick. The next show is
the Jean London Show. I am not
calling anymore. That was really
gross. Goodbye.
DIMINSKI: Okay. Sorry.
At his deposition, which was also supplied to the motion
judge, Diminski explained the basis for, and the reasoning, behind
his comment. He said that since he had been raised in North
Jersey, he had never heard of Sally Starr until sometime in the
1980's, when he and his wife's family who were from Philadelphia
were "kind of sitting around talking about old things in Philly
which of course I wasn't privy to." He had never seen her show and
it was explained to him that she was a "cowgirl television show
host."
Diminski then mentioned three occasions in which he had heard
that plaintiff was a self-identified lesbian. He said that on one
occasion "the next door neighbor and friends or something," of his
in-laws, mentioned that they had heard on the local news that
"Sally Starr had been involved with the Gay Pride parade and how
Sally Starr had been a so-called out lesbian." He also remembered
one occasion "probably in 1995 or something like that" while he was
working on his car when he "heard this conversation. I remembered
back to the other conversation from the 80's about who Sally Starr
was." Finally, he mentioned an occasion, "probably around 1988 or
1989" at "some club" where he was performing as a stand-up
comedian, and some of the comedians were having a conversation
about plaintiff, and "it wasn't said in a joking way or even in a
demeaning way but just about how she had in later life, I hate to
use the term came out of the closet and had acknowledged that she
was a lesbian." He said he "just had heard various things like
that to the point where I thought it was just sort of common
knowledge for people who were in that area, who were in the
Delaware Valley or had grown up watching her. But I for one did
not even know what the woman looked like."
Defendant was unable to identify any of the individuals in
these conversations. He also said to the best of his recollection,
he never read an interview with plaintiff where she identified
herself as a lesbian.
Plaintiff learned of the comment from friends who listened to
the show. She called the radio station immediately, and apparently
reached Diminski's call screener, but "couldn't get any where with
him." She asked to speak to Jacobs, the program director. She
complained that Diminski had referred to her as a "lesbian
cowgirl." Jacobs said that he did not hear the comment, but would
"go into the studio and correct it." Diminski retracted the
statement, noting "[i]t has been very informative today. We have
learned about sex offenders' rights. We learned about diamonds.
We learned Sally Starr is not a lesbian."
* * *
DIMINSKI: So here is what's really funny is
our boss gets a phone call. Now our
boss didn't hear us talking about
this. All he knows all of a sudden
Sally Starr is on the phone with our
boss screaming about me calling her
a lesbian.
DOYLE: Sally Starr is somebody he watched
as a kid. So it was a very
interesting episode.
DIMINSKI: Right. But it was very bizarre and
surreal for him so I just wanted to
say that apparently she is not and I
apologize for that because I know
that I wouldn't want to be called a
lesbian so she is not a lesbian. It
is six o'clock.
At the hearing on defendants' motion for summary judgment, the
judge preliminarily stated that "plaintiff is a public figure."
Plaintiff's attorney apparently acquiesced in that comment and
indeed on this appeal does not suggest otherwise.See footnote 11 The judge
concluded that in order to prevail, plaintiff must demonstrate, by
clear and convincing evidence, that defendant's statement was
accompanied by malice, that it was made with "knowledge of the
probable falsity of the statement." The judge concluded that the
materials furnished him did not establish "anything close to clear
and convincing evidence" that Diminski either acted with malice, or
in reckless disregard of the truth.
On this appeal, plaintiff argues that the motion judge erred
in granting summary judgment because: (1) the term "lesbian
cowgirl" is reasonably susceptible of a defamatory meaning, and (2)
summary judgment should have been denied since a reasonable
factfinder could find by clear and convincing evidence that
Diminski uttered his comment "knowing that it was false or
seriously doubting its truth."
It is well-settled that in deciding whether to grant summary
judgment, the motion judge must "consider whether the competent
evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor
of the non-moving party."
Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). Summary judgment must be granted "if the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue of as any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law.
An issue of fact is genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the
motion, together with all legitimate inferences therefrom favoring
the non-moving party, would require submission of the issue to the
trier of fact."
R. 4:46-2(c). The judge's function is to
determine whether there is a genuine issue for trial, but not to
weigh the evidence or decide the issue.
Brill,
supra, 142
N.J. at
540. An alleged disputed issue of fact is not considered genuine
if there exists a single unavoidable resolution of that issue.
Ibid. Stated another way, "if the evidence is so one-sided that
one party must prevail as a matter of law, the trial court should
not hesitate to grant summary judgment."
Ibid. (internal citation
omitted). An appellate court applies the same standard that
governs trial courts in determining whether summary judgment was
properly granted.
Graziano v. Grant,
326 N.J. Super. 328, 338
(App. Div. 1999).
In a defamation action, the threshold issue is whether the
language used is reasonably susceptible of a defamatory meaning.
Decker v. Princeton Packet,
116 N.J. 418, 424 (1989);
Romaine v.
Kallinger,
109 N.J. 282, 290-91 (1988);
Kotlikoff v. The Community
News,
89 N.J. 62, 67 (1982). Initially, the question is one of law
to be decided by the court.
Decker,
supra, 116
N.J. at 424;
Kotlikoff,
supra, 89
N.J. at 67. If the statement is susceptible
of only one meaning, and that meaning is defamatory, the statement
is defamatory as a matter of law.
Romaine,
supra, 102
N.J. at 290.
On the other hand, if the statement is susceptible of only a non-
defamatory meaning, it cannot be considered defamatory, and the
complaint must be dismissed.
Ibid. However, in those cases where
the statement is capable of being assigned more than one meaning,
one of which is defamatory and another not, the question of whether
its content is defamatory is one that must be resolved by the
factfinder.
Id. at 290-91.
Our research has failed to disclose a case in New Jersey
considering whether an accusation of homosexuality is defamatory.
However, the majority of jurisdictions in other states that have
considered the issue have concluded that a false accusation of
homosexuality is actionable. See, for example,
Bohdan v. Alltool
Mtg. Co.,
411 N.W 2d, 902, 907 (Minn. Ct. of App. 1987) (false
accusation that plaintiff's sexual preference was other than
heterosexual is at least reasonably susceptible of a defamatory
meaning);
Nazeri v. Missouri Valley College,
860 S.W.2d 303, 312
(Mo. Sup. Ct. 1993),
rehearing denied, September 28, 1998
(allegation of homosexuality is defamatory per se);
Thomas v. Bet
Sound-Stage Restaurant/BrettCo, Inc.,
61 F. Supp 2d, 448 (D. Md.
1999) (false statements regarding plaintiff's sexual preference are
defamatory);
Moricoli v. Schwartz,
361 N.E.2d 74, 76 (Ill. App.
Ct. 1977) (accusation of homosexuality is actionable but not
libelous per se and requires proof of special damages);
Hayes v.
Smith,
832 P.2d 1022 (Colo. Ct. App. 1992) (same);
Hess v. Newton,
596 S.W.2d 209. 210 (Tex. Civ. App. 1980) (false accusation or
homosexuality is slanderous per se). Although society has come a
long way in recognizing a persons' right to freely exercise his or
her sexual preferences, unfortunately, the fact remains that a
number of citizens still look upon homosexuality with disfavor.
Accordingly, we conclude that at the very least, a false accusation
of homosexuality is reasonably susceptible to a defamation meaning.
In order to prove defamation, a plaintiff must establish that
defendant made a defamatory statement of fact concerning plaintiff,
which was false, and was communicated to a person or persons other
than plaintiff.
Govito v. West Jersey Health System,
332 N.J.
Super. 293, 305 (App. Div. 2000). A defamatory statement is one
that tends to harm the reputation of the plaintiff or to lower
plaintiff in the estimation of the community or deter third persons
from associating or dealing with him or her.
Ibid. Moreover, a
plaintiff must establish damages.
Ibid.
As previously noted, plaintiff conceded she was a public
figure. Because of the strong interests in uninhibited debate on
public issues, our court's have held that the First Amendment
protects statements made concerning public officials, or public
figures, unless those statements are made with knowledge that they
were false or with reckless disregard of whether they were false or
not.
New York Times v. Sullivan,
376 U.S. 254, 279-80, 84
S. Ct.,
710, 726,
11 L. Ed.2d 686, 706 (1964);
Curtis Publishing Co. v.
Butts,
388 U.S. 130, 164
87 S. Ct. 1975 (1996,
18 L. Ed.2d 1094,
1116 (1967);
Sisler v. Gannett Co., Inc.,
104 N.J. 256, 263 (1986).
"To satisfy the actual-malice standard, a plaintiff must show
by clear and convincing evidence that the publisher either knew
that the statement was false or published with reckless disregard
for the truth."
Lynch v. New Jersey Educ. Ass'n.,
161 N.J. 152,
165 (1999) (internal citations omitted). To prove that the
publication was made with reckless disregard for the truth, "a
plaintiff must show that the publisher made the statement with a
'high degree of awareness of [its] probable falsity,' or with
'serious doubts' as to the truth of the publication."
Ibid.
(internal citations omitted). While negligent publication does not
satisfy the actual-malice test, a finding of reckless publication
may result if the publisher either fabricates a story, or publishes
a story or accusation that is wholly unbelievable, or relies on an
informant of dubious veracity, or purposely avoids the truth.
Ibid. (internal citations omitted). While initially the question
of malice must be determined by the court as question of law,
summary judgment may only be granted if a reasonable factfinder
could not find that plaintiff had established malice by clear and
convincing evidence.
Lynch,
supra, 161
N.J. at 168-69.
We recognize that litigation, particularly this type of
litigation, is expensive, and, consequently, non-meritorious
defamation claims have a tendency to compromise or chill the
exercise of First Amendment values. As a result, a court should
not be reluctant to grant summary judgment if the defamation claim
lacks merit.
Rocci v. Ecole Secondaire Macdonald-Cartier,
165 N.J. 149, 158 (2000);
Costello v. Ocean County Observer,
136 N.J. 594,
605 (1994);
Maressa v. New Jersey Monthly,
89 N.J. 176, 196,
cert.
denied,
459 U.S. 907,
103 S. Ct. 211,
74 L. Ed.2d 169 (1982).
Acknowledging our responsibility to review the record and
determine whether plaintiff introduced sufficient proof to
establish that defendants abused their First Amendment privileges,
and at the same time heed the admonition of the Supreme Court not
to be reluctant to grant summary judgment in this type of case, we
conclude that the judge erred in granting summary judgment. We
recognize that in this type of case a plaintiff must produce
substantial evidence to survive a motion for summary judgment.
Costello,
supra, 136
N.J. at 615. We also recognize that while we
are constrained to construe the evidence in the light most
favorable to plaintiff, the clear and convincing standard in a
defamation case adds an additional weight to plaintiff's burden.
Ibid. On the other hand, ordinarily, where a party's state of mind
is critical, and there is a genuine critical issue of material fact
as to the state of mind, summary judgment should be denied since
the issue of state of mind does not readily lend itself to summary
disposition.
Costello,
supra, 136
N.J. at 615;
Shebar v. Sanyo
Bus. Sys. Corp.,
111 N.J. 276, 291 (1988).
Rarely will direct
evidence be available to prove state of mind.
Costello,
supra, 136
N.J. at 615. Hence, we are understandably reluctant to grant
summary judgment if the issue of malice is present, provided that
if when considered in the light most favorable to plaintiff, the
reasonable inferences to be drawn from the evidence could lead a
factfinder to conclude that defendant acted with malice, or, in
reckless disregard of the truth.
Ibid.
Here, we are satisfied that a reasonable factfinder could
conclude by clear and convincing evidence, based upon the statement
of Diminski, that he acted with reckless disregard of the truth in
uttering this statement. To say the least, his sources were of
dubious veracity. Indeed, they are so vague that a jury could find
that they were contrived after the fact. In addition, a jury would
reasonably conclude, in light of the vague nature of his
recollection, that Diminski's statement that it was common
knowledge that plaintiff is a lesbian, was not credible. Thus, we
determine that the motion judge erred in granting summary judgment.
Presumably, because the motion judge found that plaintiff had
failed to meet her burden with respect to establishing malice by
clear and convincing evidence, he never reached defendants'
additional contention that the comments were not defamatory in the
first instance since they constituted parody, humor or a satire.
Without expressing any opinion on the merits of defendants'
contention, we decline to address the issue since it was not ruled
upon in the first instance by the motion judge.
Subcarrier
Communications, Inc. v. Day,
289 N.J. Super. 634, 646 (App. Div.
1997).
Our decision today should not deter responsible members of the
print and electronic media from freely exercising their First
Amendment privilege. Indeed, free and open debate, as well as
dissemination of thought or opinions on public issues is one of the
cornerstones of our democracy. The bar is understandably high for
a plaintiff to successfully assert this type of cause of action,
and plaintiff must therefore meet a high threshold in order to
defeat a motion for summary judgment. While the bar is properly
set at a high level, it is not unattainable. If it were, there
would be absolute immunity. We merely conclude that under the
circumstances here presented a reasonable factfinder could conclude
by clear and convincing evidence that Diminski acted with reckless
disregard for the truth, and, consequently, the motion for summary
judgment should have been denied.
Reversed and remanded for further proceedings not inconsistent
with this opinion.
Footnote: 1 1Based upon this concession, we have elected to decide this
case as if plaintiff was a public figure. Indeed, we believe it
would be inappropriate to do otherwise. However, we express no
opinion whether plaintiff is, in fact, a public figure. See
Sisler v. Gannett Co., Inc.,
104 N.J. 256, 263 (1986).