SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1983-97T5
WILLIAM W. FORTENBAUGH,
Plaintiff-Appellant,
v.
NEW JERSEY PRESS, INC., and
MORTON R. RABINOWITZ,
Defendants-Respondents.
__________________________________
Argued: November 5, 1998 - Decided: January
22, 1999
Before Judges King, Wallace and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County.
George W. C. McCarter argued the cause for
appellant (McCarter & Higgins, attorneys; Mr.
McCarter, on the brief).
Thomas J. Cafferty argued the cause for
respondent New Jersey Press, Inc. (McGimpsey &
Cafferty, attorneys; Mr. Cafferty and Arlene
M. Turinchak, on the brief).
Leon Friedman of the New York bar, admitted
pro hac vice, argued the cause for respondent
Morton R. Rabinowitz (Ball Livingston and Mr.
Friedman, attorneys; Stuart S. Ball, of
counsel and on the brief).
The opinion of the court was delivered by
KING, P.J.A.D.
In an "op-ed" column in the "Homes News & Tribune" Morton R. Rabinowitz stated that in an unidentified court proceeding documents revealed plaintiff, William P. Fortenbaugh, a Rutgers professor, had been accused of masturbating at a faculty meeting. Fortenbaugh brought this suit for defamation. He conceded that he had been so accused but he denied that the accusation was true. He claimed the op-ed article was an unfair report.
The Law Division judge granted summary judgment to defendants, the op-ed author, Rabinowitz, and the publisher of the "Home News & Tribune," New Jersey Press, Inc. The judge found that the alleged defamation (1) was protected by the privilege of fair reporting of judicial proceedings, and was (2) true .... that plaintiff had been accused of masturbating.
We reverse on both grounds and remand for further proceedings. We conclude (1) that the privilege did not apply because the op-ed article was not a fair or accurate account of a judicial proceeding and (2) the defense of truth did not apply because the relevant "truth" was the underlying conduct .... whether plaintiff actually masturbated at the faculty meeting .... not whether he was accused of doing so.
On February 15, 1996 the "Home News & Tribune" published a "COMMENTARY" by Rabinowitz, who was not an employee of the newspaper, and was identified in the article only as a "resident of North Brunswick." Bearing the headline, "RU SWEEPS HARASSMENT UNDER THE RUG," Rabinowitz's article purported to comment on the newspaper's earlier report that Professor Fortenbaugh had been reprimanded and ordered to undergo counselling after "numerous complaints of sexual harassment were sustained against him."
In the part of the article alleged as defamatory, Rabinowitz wrote:
Reprimand notwithstanding, Fortenbaugh's
conduct apparently continued. As revealed in
recently unsealed court papers, this fact was
brought to the attention of the Rutgers
administration when his department chairman
reported that the professor had allegedly
masturbated during a faculty meeting. No
sanctions were imposed for this offense.
Rabinowitz's article described other incidents involving plaintiff
and other Rutgers faculty, all of which he claimed were handled
improperly by the University.
In his deposition in this action Rabinowitz revealed that the
article had originated as a letter to the editor originally written
by Joseph San Filippo, a Rutgers professor who had been fired for
misconduct and who had filed an unsuccessful wrongful discharge
suit against Rutgers. Rabinowitz submitted the letter under his
own name because San Filippo "felt that if he signed the letter,
they wouldn't print it." Rabinowitz said he did not know that the
letter would be published in the format of an "op ed column,"
rather than as a letter to the editor.
Rabinowitz also testified by deposition that he had satisfied
himself that the facts concerning plaintiff were true by examining
some "court records" which San Filippo showed him from his
unsuccessful suit against Rutgers. One of those "records" was the
deposition of Jean Ambrose, Assistant Vice President for Faculty
Affairs, who said that she had heard the rumor that a professor,
designated in the San Filippo case as Professor LFF or FF, once had
masturbated in front of other faculty members. Rabinowitz had also
examined the deposition, in the San Filippo case, of Elizabeth
Mitchell, another Rutgers administrator, who testified that a
department chairperson had reported to her that a "tenured faculty
member had masturbated in front of his faculty colleagues at a
faculty meeting."
Rabinowitz had also seen a March 29, 1994 letter, produced as
an exhibit in the San Filippo matter, in which Rutgers responded to
a sexual harassment claim against a professor, designated at the
top of the letter by the code letters FF. While the name of the
accused professor was blocked out several times, in one instance,
it was not; this oversight revealed that plaintiff was the
professor under sexual harassment suspicion. Plaintiff properly
observes this was caused by "careless redacting."
The harassment claim discussed in the letter bore absolutely
no relationship to the alleged masturbation incident. Rabinowitz
had deduced that plaintiff was the FF referenced by Jean Ambrose
because that was the code designation which appeared at the top of
the March 29, 1994 letter, in which plaintiff was identified by
name, albeit accidentally.
In their depositions for the present case, both Mitchell and
Ambrose testified that plaintiff was the subject of the
masturbation accusation. At oral argument plaintiff's counsel
conceded this point, while denying that the accusation was true.
Elizabeth Mitchell testified she believed that the masturbation
incident allegedly occurred in the mid-1980's.
In November 1996 plaintiff filed this complaint seeking damages for the allegedly libelous "op-ed" article which reported he had been accused of masturbating during a faculty meeting. In addition to two counts in defamation, the complaint stated counts for negligence and intentional infliction of emotional harm. The original defendants were the owner and publisher of the newspaper (Asbury Park Press), the author of the article (Rabinowitz), and the unidentified department head who first uttered the accusation against plaintiff (John or Jane Doe). The named defendants filed separate answers denying the key allegations and asserting various defenses, including truth and the privilege to report on judicial proceedings.
Plaintiff replaced Asbury Park Press with its successor, New Jersey Press, Inc., as a defendant. The judge denied plaintiff's motion to substitute Anna S. Benjamin for the fictitiously-named defendant because she allegedly made the statement about ten years earlier or well beyond the statute of limitations.
After discovery, both defendants moved for summary judgment. The Law Division judge rendered an oral opinion granting summary judgment to both defendants on alternative grounds: (1) the alleged libel was a fair report of statements made during a judicial proceeding; and (2) the protested statement was true.
Plaintiff contends that the motion judge erroneously exonerated defendants under the defense of the qualified privilege to fairly report on judicial proceedings. That privilege cannot apply here, plaintiff contends, because the protected portion of the article was not fair and accurate and defendants were motivated by ill will. The defendants reply that the privilege applies because the article accurately stated that court records showed a department head had accused plaintiff of masturbating during a faculty meeting. Defendants deny any malicious motives.
The motion judge correctly found there was no dispute that plaintiff was the person referred to in the San Filippo case as having been accused of masturbating at a faculty meeting. Indeed, counsel for plaintiff conceded this fact. He had to concede this after Mitchell and Ambrose so testified at depositions. But plaintiff's counsel did and continues to deny the substance of the accusation, i.e., that plaintiff in fact did masturbate at a faculty meeting. The defendants do not appear to claim that the allegation was true, but only that it was made.
Hence the judge ruled "that the newspaper and Mr. Rabinowitz are entitled to summary judgment on the basis of the fair report of judicial proceedings and the [defense of] truth supplementary to that, since there is no issue of fact with regard to the identity of the individual who was claimed to have been involved in this act." The judge disagreed with plaintiff that defendants had to demonstrate the truth of the underlying conduct __ that plaintiff actually masturbated at the meeting __ as opposed to the truth of the statement which the records in the San Filippo case disclosed, that plaintiff had been accused of masturbating. The judge also reasoned that Rabinowitz was privileged to report what his own investigation revealed, namely, that the person identified in court by the code letters LFF or FF was really plaintiff: "He's entitled to report what happened in the proceeding. And he's also entitled to figure out who the person was. And if he's right about who it is, then it's truth."
Defendants do not dispute that the imputation of masturbating at a faculty meeting was defamatory. But defendants assert: "The fair-report privilege is an exception to the general rule that imposes liability for republication of a defamatory statement." Costello v. Ocean County Observer, 136 N.J. 594, 606 (1994). The privilege permits publication of defamatory matter uttered in judicial and other public proceedings. Id. at 607; Orso v. Goldberg, 284 N.J. Super. 446, 451 (App. Div. 1995). Its purpose is to assure the public interest in knowing what takes place in official proceedings. The underlying rationale is that members of the public, had they been present, would have seen and heard the same statements which were reported; the publisher is merely an interlocutor to the public at large. Costello, 136 N.J. at 607.
The privilege is summarized in the Restatement (Second) of Torts § 611 (1977):
The publication of defamatory matter
concerning another in a report of an official
action or proceeding or of a meeting open to
the public that deals with a matter of public
concern is privileged if the report is
accurate and complete or a fair abridgement of
the occurrence reported.
For a report of judicial proceedings to be protected by this
privilege, it must be full, fair, and accurate. Costello, 136 N.J.
at 607; Orso, 284 N.J. Super. at 454. The test for fairness and
accuracy is an objective one. Costello, 136 N.J. at 607. "It is
not necessary that the account be exact in every detail, so long as
it conveys to the persons who read it a substantially correct
account." Orso, 284 N.J. Super. at 454. Accord, Restatement
(Second) of Torts, § 611 comment f. While errors and omissions are
not necessarily fatal, the privilege is defeated if those errors
and omissions, read objectively, tend to mislead readers.
Costello, 136 N.J. at 608; see Sedore v. Recorder Pub. Co.,
315 N.J. Super. 137, 156 (App. Div. 1998).
Even if the report is facially accurate, it might not be fair
if edited or abridged in a misleading manner. Costello, 136 N.J.
at 608. Thus, though 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, as for example a report of the
discreditable testimony in a judicial
proceeding and a failure to publish the
exculpatory evidence, or the use of a
defamatory headline in a newspaper report,
qualification of which is found only in the
text of the article. The reporter is not
privileged under this Section to make
additions of his own that would convey a
defamatory impression, nor to impute corrupt
motives to any one, nor to indict expressly or
by innuendo the veracity or integrity of any
of the parties.
[Restatement (Second) of Torts,§ 611 comment
f.]
A report may not be "fair" if it fails to reveal the ultimate
outcome of the reported accusation. For example, in Reilly v.
Gillen,
176 N.J. Super. 321 (App. Div. 1980), during a 1977
municipal election defendant mailed to voters a copy of a 1954
article reporting that a civil action alleging public corruption
had been filed against plaintiff, a candidate in the election. The
mailing did not reveal the complaint was later dismissed and
plaintiff exonerated. We upheld the trial judge's rejection of
defendant's fair-report privilege defense, ruling that the accuracy
and fairness of a report must be assessed as of the time of
publication, not the time of the original proceeding: "an article
true when published may nevertheless be libelous if knowingly
republished without reference to intervening events establishing
that the factual allegations originally recounted were false." Id.
at 327. We there reasoned:
In 1977 the 23-year-old article was not "fair
and accurate" because of Gillen's failure to
report the ultimate disposition of the charge.
As republished, the article's unmistakable
import was that plaintiff was guilty of
wrongdoing, an insinuation which lay beyond
the privilege whether we call it a false
statement or a distorted account.
Thus "the jury was properly permitted to assess the truth thereof
in light of the facts as they were known at the time of
republication." Id. at 328.
Plaintiff in the case now before us stresses the following
ways in which Rabinowitz's article in the "Home News" was
inaccurate and unfair:
There were no "unsealed" court records.
Nowhere in the San Filippo litigation was
Professor Fortenbaugh's name associated with
the "masturbation" rumor. No "offense" by
Professor Fortenbaugh was "revealed" in the
course of the San Filippo judicial
proceedings, nor was there any suggestion that
he improperly evaded "sanctions" as implied by
the article.
Defendant publisher argues that whether the records were
"unsealed" is unimportant to the "gist" or "sting" of the alleged
defamation, which is that plaintiff masturbated at a faculty
meeting. Nonetheless, defendant Rabinowitz invokes the affidavit
by Joseph San Filippo, filed in support of Rabinowitz's summary
judgment motion, which clarifies the extent to which the San
Filippo records were originally confidential. San Filippo
testified by deposition that, in response to his discovery demand,
Rutgers provided documentation on charges against other professors,
the names of whom were redacted. The crucial letter accidentally
revealing plaintiff's unredacted name on one occasion was one of
those documents. According to San Filippo, "the documents were
subject to a confidentiality order entered into by the court so
that the documents could not be made public." At trial of the San
Filippo matter, says San Filippo, the judge "issued an order
permitting us to introduce those exhibits, vacating the
confidentiality order and unsealing the documents with respect to
exhibits that we would introduce at the trial." Thus the statement
that the records were "unsealed" is not itself inaccurate or
misleading.
More substantial, however, is plaintiff's complaint about the
article naming him as the subject of the public masturbation
complaint. For the reasons which follow, we agree with plaintiff
that the protested excerpt in the article was both inaccurate and
unfair to him.
First, the excerpt's chronology is misleading, to plaintiff's
detriment. Beyond dispute, the alleged masturbation incident
purportedly occurred at least ten years before publication of the
1996 article. The article referred to plaintiff's reprimand for
alleged sexual harassment with respect to a junior female faculty
member. This incident occurred sometime in 1989, according to the
March 29, 1994 letter; the complaint about it was made in January
1990. The clear but incorrect implication of the Rabinowitz "Home
News" article was that plaintiff masturbated at a faculty meeting
after he was reprimanded for this conduct in 1989.
Second, in referring to the facts revealed in "court papers,"
the excerpt did not specify the nature of that court action. A
reasonable implication was that plaintiff himself was the charged
party in a judicial proceeding as a result of the masturbation
incident, perhaps even in a criminal case. Nothing in the passage
conveyed the fact that the sexual harassment allegation against
plaintiff arose from a complaint of a verbal sex-discrimination
involving a junior faculty member in 1989, which brought only a
written administrative rebuke as a sanction.
Third, in stating that plaintiff was not sanctioned by Rutgers
for this "offense," the excerpt implied that plaintiff had been
found guilty (if a criminal case) or liable (if a civil case) of
public masturbation. Rabinowitz's article neglected to state that
the masturbation charge had neither ever been sustained nor indeed
ever formalized into a disciplinary, civil, or criminal complaint.
Under the doctrine expressed in Reilly v. Gillen, 176 N.J.
Super. at 327, the article unfairly and inaccurately insinuated
that plaintiff had been adjudicated "guilty of wrongdoing." That
it correctly reported plaintiff had been accused was not enough to
cloak defendants in the fair-report privilege. Defendants were
obligated to flesh out the report to reflect the true nature of the
accusation referred to and its ultimate conclusion.
The judge ruled that a publisher should be permitted to
perform its own investigation in order to uncover persons whose
identities were intended to be kept secret in a judicial
proceeding. However, the publisher loses the benefit of the fair-report privilege in this circumstance. True, anyone who examined
the code letters used in the San Filippo case to denote plaintiff
(FF) could have looked at the FF at the top of the poorly redacted
letter of March 29, 1994 and deduced that FF was Fortenbaugh, the
plaintiff here. But that fortuity only occurred because someone
unknown carelessly failed to block out plaintiff's name in one
place in that letter. As set out in San Filippo's affidavit, the
intent of the court was to keep the names of FF and the other
professors confidential. The public policy favoring
confidentiality of such matters is thwarted if a third-party,
through detective work and educated guessing, could use court-intended confidential information as the basis for a privilege to
defame the person whose identity properly was concealed by judicial
decree.
We add several comments respecting sealed records. Dean
Prosser says that "sealed records and documents withheld from the
public eye under court order" lie outside the fair-report
privilege. Prosser and Keeton on Torts, § 115 at 837 (5th ed.
1984). Though plaintiff's name in the March 29, 1994 letter was
open to the public eye, this was only by mistake. The Prosser and
Keeton principle should apply to this circumstance as well,
otherwise the salutary effects of keeping some evidence
confidential is negated. Moreover, the public policy underlying
the fair-report privilege is to foster the public's awareness of
what actually happens at public proceedings. Costello, 136 N.J. at
607. That policy necessarily must yield in cases where, as in San
Filippo, a court has decided that certain sensitive but gossipy
matters should remain confidential in order to properly protect
reputation.
Courts have also held that the fair-report privilege does not
extend to matters discovered during the publisher's "extra-judicial
investigation." Purcell v. Westinghouse,
191 A.2d 662, 668 (Pa.
1963). Nor does the privilege include "a reporter's inferences
drawn from the public record." Dawson v. New York Life Ins. Co.,
932 F. Supp. 1509, 1532 (N.D. Ill. 1996), aff'd
135 F.3d 1158 (7th
Cir. 1998).
Since we conclude that the privilege never attached in this
case, we need not rule whether the privilege was lost by virtue of
malice on the part of defendants. We observe briefly that the kind
of malice needed to defeat the fair-report privilege is vigorously
debated by the parties and is unsettled in New Jersey. Plaintiff
insists that malice means ill will while defendants claim that the
correct standard is the "constitutional malice" test: knowledge
that the statement was false or in reckless disregard of its truth
or falsity. In Orso, 284 N.J. Super. at 455-57, we reviewed the
conflicting standards of malice and declined to resolve the
conflict; resolution was unnecessary because of our finding that
the fair-report privilege was not abused in that case under any
standard. Because we have concluded that the conditions of the
privilege were not established here, we need not decide the
question of whether the privilege was abused.
We turn to the defense of truth. Plaintiff contends that the judge wrongly credited defendants' truth defense. Both defendants raised truth as a separate defense, in addition to the defense of the fair-report privilege. The judge did not analytically separate the two; he referred to the truth defense as "supplementary" to his main ruling that the fair-report privilege applied. The judge seemed to say that because it was true plaintiff was the person accused of having masturbated, the article was "accurate" and protected by the fair-report privilege. Nonetheless, his opinion is susceptible of plaintiff's interpretation that, in addition to treating truth as an element of the privilege, the judge also held truth was an independent defense.
The issue is whether a defendant who publishes a statement to the effect that a third party made a defamatory statement about plaintiff may escape liability by showing it was true that the third party made that statement. This is the defendants' position, and this is what the Law Division judge ruled. But plaintiff contends that it is the truth of the underlying conduct which must be shown, i.e., not only that a department chair accused plaintiff of publicly masturbating but that plaintiff in fact did so masturbate.
Though there is no New Jersey case holding either way on this point, our Supreme Court has approved plaintiff's view in dicta:
There is considerable authority for the
proposition that the fact that defendants
accurately reported information obtained from
another source will not relieve them of
liability. Under that analysis the defense of
truth does not refer to the truthful
republication of a defamatory statement but to
the truth of the statement's contents.
Restatement (Second) of Torts § 578, comment
b, at 235-36 (1977). Thus, if defendant
published that a third person stated that
plaintiff has committed a crime, it is no
justification that the third party did in fact
make that statement. Rogers, supra, 2 N.J. at
401-02. Defendant must prove that in fact
plaintiff committed the crime. See L.
Eldridge, Law of Defamation § 67 at 331
(1978).
[Lawrence v. Bauer Pub. & Print. Ltd., 89
N.J. 451, 461, cert. denied,
459 U.S. 999, 103
S. Ct. 358,
74 L. Ed.2d 395 (1982).]
The Court's dicta is consistent with the comment to the
Restatement's section on the truth defense:
e. It is necessary to find that the
defamatory matter contained in the statement
is true. When one person repeats a defamatory
statement that he attributes to some other
person, it is not enough for the person who
repeats it to show that the statement was made
by the other person. The truth of the
defamatory charges that he has thus repeated
is what is to be established.
[Restatement (Second) of Torts, supra, § 581A
comment e.]
See also Prosser and Keeton on Torts, supra, § 116 at 841 ("If the
defendant repeats the defamation as reported by another, it will
not be enough to prove the fact of the report, without proving the
truth of the imputation reported"). Defendants present no counter-authority, resting on their insistence that the only pertinent
truth is the statement that plaintiff was the person who was the
subject of the allegation.
We agree with plaintiff. The truth defense would excuse too
much if a defendant could be immunized by the fact that its
defamatory statement was first uttered by someone else, as the
Court in Lawrence recognized. Such a defendant can still escape
liability under the fair-report privilege, if its requisite
elements are otherwise met, but they are not met here. A defendant
cannot escape responsibility just because the alleged defamation
was first uttered by another, perhaps an unreliable gossip. To the
extent the judge applied the truth defense as a separate theory for
absolving defendants, this was error.
Plaintiff next argues that defendants were not entitled to the protection of the heightened standard of fault governing alleged defamation of public officials, namely, the "actual malice" standard derived from New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed.2d 686 (1964). Both defendants asserted the so-called "constitutional privilege" as defenses. In light of his holding that the article was either privileged or true, however, the judge did not need to reach the fault issue, which is cognizable only if no defenses to the defamation apply. Costello, 136 N.J. at 612. Under the governing fault 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." Ibid. We have concluded that the judge erred in accepting the privilege and truth defenses. Thus we must consider the question of fault.
The parties concede that the judge did not resolve this "public figure" question. When counsel for Rabinowitz argued that plaintiff was a public official, and that plaintiff could not prove the requisite "actual malice," the judge expressed that plaintiff was "[p]robably not" a public official, adding: "But I don't know that it matters." The judge disposed of the case on the privilege and truth defenses, speaking of malice only in the context of whether the fair-report privilege was defeated.
No New Jersey case has considered whether college professors are public officials or public figures for purposes of the New York Times "actual malice" test. Elsewhere, there are cases on both sides of the question; plaintiff cites the ones favoring him while Rabinowitz cites contrary cases. See generally Danny R. Veilleux, Annotation, Who is "Public Official" for Purposes of Defamation Action, 44 A.L.R. 5th 193, 336-342 (1996); Tracy A. Bateman, Annotation, Who is "Public Figure" for Purposes of Defamation Action, 19 A.L.R. 5th 1, 185-87 (1994).
The result in any particular case is fact-sensitive, turning on the particular duties and status of the professor in issue. Those who have significant discretionary power over matters of public interest, or have become involved in public controversies, are more likely to be deemed public officials or figures than those who have relatively low profiles. Compare Grossman v. Smart, 807 F. Supp. 1404, 1408 (C.D. Ill. 1992) (professors who had high-level decisionmaking authority in public university were "public officials"), with Staheli v. Smith, 548 So.2d 1299, 1304 (Ms. 1989) (public-university professor had no high-level decisionmaking authority, and he had not become involved in a controversy of public interest). "Whether a person is a public official or a public figure is a mixed question of fact and law to be determined by the trial court." Southall v. Little Rock Newspapers, 964 S.W.2d 187, 191 (Ark. 1998).
Rabinowitz argues that plaintiff was a "public official" because (1) he was a professor at a state university, (2) he acted as chairperson of the Classics Department from 1987 to 1990, and 3) as he alleged in his complaint, he had "earned a national and international reputation as a teacher, scholar, and expert on ancient Greek literature and philosophy." Rabinowitz also alleges, without citation to the record, that plaintiff had "discretionary administrative power within the University." Plaintiff in turn denies that he had any of the characteristics required to trigger "public" status.
On the present record, we can not fairly decide this issue. The trial-level judge will be in a much better position to resolve the issue, whether on the existing record after briefing and argument and perhaps after pertinent further discovery and factual presentation. See Hill v. Evening News, 314 N.J. Super. 545, 559-60 (App. Div. 1998).
Plaintiff next contends that the judge should not have dismissed counts three and four. Count three alleged that defendants were negligent in failing to take steps to ascertain the truth of the article's allegations. Count four alleged that defendants' defamation constituted the tort of outrage or intentional infliction of emotional harm. The judge did not mention counts three and four in his oral opinion. Plaintiff wrote to him requesting a ruling but the judge entered an order for summary judgment, dismissing the entire complaint, without separately addressing counts three and four.
Grounded as they were in the same conduct alleged in the defamation counts, counts three and four logically would fall if the others do. See Salek v. Passaic Collegiate School, 255 N.J. Super. 355, 361 (App. Div. 1992) (trial court properly dismissed claims of intentional or negligent infliction of emotional distress, which claims paralleled the dismissed claim of defamation); Bainhauer v. Manoukian, 215 N.J. Super. 9, 48 (App. Div. 1987) (malicious-interference-with-employment count was predicated on the same facts alleged in the defamation count and could survive only if the defamation count did). Because we have ruled that the defamation action survives the summary judgment motion, the derivative claims also survive that motion.
Reversed and remanded.