Lawrence v. Bauer Publishing & Printing Ltd.

SIMPSON, ALONZO W. AND JAMES LAWRENCE PLAINTIFFS-RE- SPONDENTS, LTD., A BAUER PUBLISHING & PRINTING BAUER, CORPORATION, KURT CHRISTOPHER JEFFREY BONTEMPO, LANCE BAUER AND PATSY DEFENDANTS-AP- PELLANTS. Arguеd —Decided April November 1982. (Conant argued appellants for & Roger

J. the cause Conant McCreedy, attorneys). argued for curiae New Cafferty the cause amici

Thomas J. Reporters for Jersey and The Committee Press Association Frisch, (Seiffert, McGimpsey Cafferty, Freedom & of the Press A. F. on the attorneys; Cafferty McGimpsey, Thomas J. brief). Jr., Williams, respondents.

Paul cause argued R. opinion delivered of the Court was CLIFFORD, J. Rahway publication

This in the litigation results from topic petition two drive News-Record of articles on damages City seek based on Rahway. of Plaintiffs Defendants, the alleged defamatory nature both articles. of reporter, the defense newspaper’s publisher, editor and a assert qualified privilege protecting of truth First Amendment and concerning liability defamatory newspapers from statements public plaintiff The trial court ruled Lawrence figures. Welch, was public as set forth in Gertz 418 U.S. figure (1974), 94 S.Ct. 41 L.Ed.2d 789 dismissed Lawrence’s claim because of evidence of defendants’ actual insufficient jury Simp malice. The returned a verdict in of plaintiff favor post-trial son. Lawrence’s motion for a new trial granted. was The Division affirmed the Aрpellate judgment favor of Simpson granting and the order Lawrence new trial. 176 N.J.Super. (1981).

We agree with so much of determination below as holds However, both to be as a articles matter law. we find plaintiffs public figures purposes both to be for the of this Therefore, controversy. since there is no evidence of actual malice, awarding we vacate the plaintiff order Lawrence a new judgment trial and reverse the in favor of plaintiff Simpson.

I Rahway 1974 the Taxpayers by plaintiffs Association led Lawrence, Alonzo group’s president, Simpson, and James its secretary-treasurer, a campaign opposition conducted ato municipal appropriation for the construction of a new firehouse. Association, group up Rahway citizens made taxpayers, petitions among registered circulated Rahway’s voters in an attempt to force a referendum on the appropriation issue. 5,000 containing signatures Petitions by over were submitted plaintiffs to Rahway City Clerk in late 1974. December

On or about January Rahway 1975 the News re- Record ceived a telephone City call from Joseph Business Administrator Hartnett, a sometime concerning source news City affairs. spoke editor, Bauer, Hartnett first to the defendant Kurt then reporter Patsy Bontempo, who had been assigned controversy cover the surrounding the firehouse appropriation. Although the substance of Hartnett’s conversations with Bauer and Bontempo disputed, parties is the three to the conversations agree that Hartnett said at least this: “irregu- that there were signatures larities” petitions in some of the on the filed Association; Prosecutor, Romankow, City Theodore investigation an conducting petitions to determine wheth- er swearing there were forgery incidents of or false in connec- the petitions and that included signatures; with the

tion containing witnessed signatures those being investigated were Simpson. Lawrence and personally by controversy coverage of the firehouse ongoing part As of its above, the referred to of the conversations and as a result first of two articles that the Rahway published News-Record 9,1975 January the follow- defamatory. are plaintiffs allege On Rahway eight columns of the the entire ing spanned headline rules association “City Attorney page: News-Record’s front Lawrence, may charges loom petitions forgery improper; pertinent part: article stated in Simpson.” accompanying The the Alan Karcher ruled the filed In petitions by actions separate city attorney are of Association improper attorney officials the Rahway Taxpayers against J. asked to take action officials Theodore Romankow was by city “irregularities” in the of petitions. association leaders because Mr. handle a The learned Romankow was News-Record empowered Rahway against W. and James Lawrence, Association, case Alonzo president group’s the Simpson, secretary-treasurer. charges forgery was involved in the case be The would based signatures gathering the men which two filed 5,000 city of approximately was told. the News-Record clerk Robert W. Schrof on December 27, charged swearing of be with false In connection with this the men would also oaths and it was asserted. affidavits, re- request that the News-Record response plaintiffs’ article, above-quoted the the allegations the contained in tract page April on the front of following appeared headline “News-Record asked to retract newspaper: 1975 edition of the As de- acknowledged by article on battle.” at trial firehouse fendants, was not accompanying article a retraction of Rather, an story earlier it defended earlier as article. as accurate account of the facts made known to News-Rec- “a 17th by [City] April ord source in the administration.” no emphasized article that the first article contained accusations guilt “city turn- merely of but the assertion that officials were petitions prosecutor, they the local which in fact ing over to did, swearing investigate allegations forgery and false sponsorship Association's oaths.” The article described the drive, petition reported following investigation an to the municipal prosecutor, petitions were referred prosecutor’s Union office County investigations “for further of charges.” the

In conclusion the newspaper stated: The News-Reсord did not does not to and seek harm Messrs. Lawrence and injure good to their names. The of their Simpson any way own pair choosing organization associated and themselves their with the publicly petitions. gentlemen, are in fact associated with the thus, and the petitions petitions subject are investigation allegations forgery in fact of the an for of and false swearing of oaths. gentlemen This did and not does not nor was it ever to mean, mean, said the guilty anything. are of Following publication the plaintiffs the second article insti- tuted this against libel action Publishing the Bauer and Printing News-Record; Company, Bauer, owner of the Rahway Kurt editor; Bauer, paper’s Jeffrey corporation’s president; Patsy Bontempo, reporter January and author of the Ninth article.1

At the outset of the plaintiffs trial for ruling moved that the two question articles in were libelous as a matter of law and that the defense of truth be should stricken from the case. The court granted both motions inasmuch as the defendants were unprepared prove plaintiffs guilty that were of the offenses articles, attributed to them namely, fоrgery false swearing.

At the close of plaintiff the case the court ruled that Law- rence was a figure purposes of the firehouse dispute. granted It defendants’ motion to dismiss Lawrence’s claim ground on the present that he had failed to clear and convincing part evidence of actual malice on the of defendants. Observing plaintiff Simpson that degree did not have the same 1Slightly more than one later year filed an amended plaintiffs complaint naming granted as Hartnett an Joseph additional defendant. The trial court judgment Hartnett’s motion for summary year based one upon statutory limitations for libel period actions, N.J.S.A. 2A:14-3. N.J.Super. (Law Div.1976). The Division reversed and remanded. 154 N.J.Su Appellate (1977). per. We reinstated trial court’s order dismissal. 78 N.J. (1979). Lawrence, the court ruled to the media as did

of access Thus, only private figure. jury charged was a Simpson jury against defendants. The Simpson’s claim respect Simpson all defendants against favor of a verdict in returned Bontempo, damages Patsy and awarded reporter, except $22,500.2 amount plaintiff requested the court Following the Lawrenсe verdict of his case. its earlier dismissal Persuaded reconsider a jury question evidence to raise the record sufficient contained malice, the trial as had acted with actual to whether defendants granted motion for a new and Lawrence’s court reversed itself trial. as trial asserting reversible error the appealed,

Defendants holding of and the rulings striking the defense truth court’s challenge a matter of law. Defendants also articles libelous as public figure grant- Simpson the was not a and the ruling that ing Finally, new trial. defendants motion for a of Lawrence’s issue question jury charge damages, of ‍‌‌​​​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌‌​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​​‌‌‍an language the the plaintiffs we of our conclusion that both do not reach because Welch, 418 94 figures are set forth in Gertz v. as (1974). 41 789 L.Ed.2d rulings the of the trial court Appellate upheld The Division Simpson’s and favor and the award of judgment affirmed the in Publishing v. Bauer & new trial to Lawrence. Lawrence Ltd., (1980). granted We defend- Printing N.J.Super. 378 (1981). appeal, ants’ motion for to N.J. 331 leave II the trial We the contention that consider first defendants’ defamatory as in the articles a matter of ruling court erred two $18,000 damages originаl jury money in instruct- 2The verdict awarded publish apology in the ed full News-Record. defendants retraction available, Following explanation by scope the of remedies the an the court on $22,500 jury figure. action the The court’s redeliberated and returned with permitting challenged deliberation is not here. further law. The effect was ruling jury of that to remove from the question of reasonably interpreted whether articles could be possessing meaning. as a nondefamatory The court based its ruling on the tendency subject plaintiffs of articles to public contempt Finch, or ridicule. See Garven v. 97 N.J.L. 329 (E.& A.1922). argue Defendants that the existence of a defam- atory meaning question fact for the jury because the plaintiffs any articles did not accuse criminal conduct. That approach reveals defendants’ as confusion to the meaning lower per court’s use of the term “libel se.” ” per terms “libel se” and per quod long “libel have been used to differentiate between writings defamatory on their face defamatory solely and those light of extrinsic facts. Co., Morning Ledger Herrmann v. Newark 48 N.J.Super. A (Aрp.Div.1958). determination of whether certain lan guage power is on its face rests within the Green, trial (1957). Only court. Leers v. 24 N.J. when capable court finds the words be of both a defamatory and a nondefamatory meaning question does a of fact arise for Herrmann, jury supra, N.J.Super. to decide. at 430. Therefore, ruling the trial court’s that the two articles were per libelous se meant the court found as a matter of law that the statements reasonably susceptible were not of a nondefama tory interpretation.

To establish the nature of defamatory it articles was not necessary plaintiffs for to prove that defendants had accused them of the commission of a crime. Words that clearly “sound to disreputation” of an individual are on Bender, their (E.& face. v. N.J.L. A.1917). Shaw 90 147 The unambiguous import of the two articles is to cast doubt on the reputations plaintiffs, of Lawrence Simpson. The state ment plaintiffs that “may charged be” with criminal conduct diminishes standing community their and is little differ ent from an plaintiffs assertion actually charged that have been with certain crimes. Hence the correctly court ruled that the se, i.e., a nondefama- susceptible not of per were libelous

articles interpretation. tory

Ill granting trial court erred in that the Defendants assert Under the truth as a defense. plaintiffs’ motion to strike established, publisher of a law, truth, exonerates the common if Time, Inc., 643 F. of fact. Medico v. defamatory statement See (Second) Torts (3d 1981); Restatement 2d Cir. however, apply, to truth (1977). 581A For the defense § “sting” of the defamatory imputation or must be as broad as Inc., 152 by Angell, v. Airstream Rogozinski statement. See modified, (Law Div.1977), N.J.Super. 146-47 N.J.Super. Prosser, (4th Law of Torts ed. W. (App.Div.1979); § 137; Medico, 1971). supra, Rogers 643 F.2d at also See Co., (1949). 2 N.J. Courier Post to strike the hearing argument plaintiffs’ motion After truth, that defendants’ defense of the trial court determined suspected were publication plaintiffs statements that forgery and investigated committing the crimes of being plaintiffs very commission swearing imputed false to cpuld Therefore, court ruled that defendants those crimes. they justification prepared not of truth unless were assert the prove reported investigation was conducted only not that loomed,” plaintiffs but also that did “forgery charges swearing. faсt and false See Restatement forgery commit 581A, c, (1977). (Second) comment at 236 When of Torts § unprepared prove that he was defense counsel conceded imputed the criminal offenses plaintiffs had in fact committed of truth stricken plaintiffs, the trial court ordered defense from the case. the trial court’s determina- Appellate Division affirmed

tion: We satisfied that a of a statement which is are, therefore, publisher entirely suggestion or in order to an insinuation, must, present adequate

defamatory by than that the article was true. That the informa more defense, literally prove enough. To tion received from another source is not sufficiently develop defense of truth under facts this defendants must show that case, had in fact committed the offenses or been that had plaintiffs they formally charged prosecuting with criminal conduct or that or authorities police county investigation an had announced official in offenses described plaintiffs (footnote omitted).] the articles. [176 N.J.Super, at 389-90 and citation There is authority proposition considerable for the that accurately reported fact that defendants information obtained from another source will not relieve them of liability. Under that analysis the defense of truth does not refer to truthful republication of a statement truth but of the (Second) statement’s contents. Restatement of Torts § Thus, b, (1977). comment at 235-36 if published defendant that person third plaintiff crime, stated that has it committed is justification no that the third in party did fact make that Rogers, supra, statement. N.J. at 401-02. Defendant must prove in plaintiff that fact committed the crime. See L. El- dridge, (1978). Law of Defamation 67 at 331 Similarly, a § charges statement that criminal were imminent would be truth- only ful if charges demonstrably impending. such were The trial court viewed the statement in as imputing this case plaintiffs forgery the crimes of and false swearing and imposed therefore proving defendants burden of that plaintiffs actually committed those crimes. A more literal had reading of the indicates that the interpretation headline correct may charges have been that of forgery swearing false were forthcoming. Whether the “truth” defense should be framed proof terms of that defendants сommitted the crimes referred to simply in the article or charges concerning charges that those might provocative question “loom” is a we not need decide today, given our holding plaintiffs public figures were who privilege 3The final portion statement refers of “fair quoted privilege report,” qualified permits of official state- republication investiga- ments issued by police heads and department county prosecutors progress privilege tions in them. See N.J.S.A. This completed by 2A:43-1. was not seriously asserted defendants since the source of their information was not one covered in the statute. 462 libel requisite by malicious defend- the

have not demonstrated judgment. to a libel necessary ants sustain IV of a constitutional Ultimately, the successful invocation fall whether by in this case is controlled defendants privilege It is private figures. or well settled category public into of the non of is privilege the existence vel in defamation actions See, law for court’s determination. question a of basically Co., Publishing 135 e.g., Evening Inc. v. News Agency, Barbetta N.J.Super. Edlin, 214, v. 65 (App.Div.1975); Sokolay 218 N.J.Super. us, In the because 112, (App.Div.1961). case befоre 124 freely and to disseminate news right speak news media’s figures public intricately is related information about worthy public question is one guarantees, figure First Amendment is a privilege and therefore involving a limited constitutional v. for trial court to decide. See Rebozo matter of law 375, Co., (5th 1981); Post 637 F.2d 379 Cir. Brewer Washington Co., 1238, (5th 1980); v. 626 F.2d 1247 Memphis Publishing Cir. 859, Inc., (5th Playboy Enterprises, 580 F.2d 861-62 Rosanova v. Nizer, 1061, (2d 1978); Meeropol 560 1066 & Cir. Cir. F.2d n.6 Sullivan, 1977). of New York Times Co. v. In the landmark case 710, (1964), Supreme 376 84 11 L.Ed.2d 686 U.S. S.Ct. speech of free guarantees Court held that the First Amendment privilege in the give rise to a limited constitutional press newspa a publications. case Under New York Times of certain a per liability publishing protected is from report official unless there public about the official conduct convincing newspaper published is clear and evidence “ is, knowledge with that it was false ‘actual malice'—that of whether it was false or not.” 376 disregard with reckless 279-80, 725-26, A U.S. at at 11 L.Ed.2d at 706. S.Ct. necessary is where demonstration of malice also cases actual plaintiff is not a official but can be identified as public Butts, public Publishing figure, Curtis Co. v. U.S. (1967), either for all or for purposes 18 L.Ed.2d 1094 purposes only upon the events the defamatory which Gertz, publication 351, 94 at supra, was based. S.Ct. at Thus, privilege L.Ed.2d 812. the existence is person controlled the status of the defamed. specific

Gertz refrains from establishing against criteria which plaintiff’s can status be measured determine whether or not he is a figure. Rather instances where the is plaintiff a public figure purposes, not for all Gertz for case-by-case calls a “looking examination to and the nature extent of an individual’s the participation particular giving in rise to controversy the defamation,” at L.Ed.2d at 812. Important factors that the to the led Court conclude that Gertz plaintiff public figure plaintiff’s was not a included of any lack relationship calculated with the press and the fact that he issue, neither public “thrust himself into the vortex of this nor [engaged] public’s attempt the in an attention to influence its outcome.” Id.

With Gertz analysis as framework for our we turn to a consideration of are plaintiffs public private figures. whether these Plainly, plaintiffs public figures purposes; are not for all possesses neither the requisite “pеrvasive fame or notoriety.” Therefore, Id. we confine our to examination whether either was a public figure regard only appropria- the firehouse tion controversy petition they spearheaded and the drive public force a referendum on the matter.

Lawrence undisputed concerning participation facts Lawrence’s controversy the he justify firehouse conclusionthat volun tarily thrust dispute. himself into forefront of that Law rence, Association, president founder and of the regularly city meetings spoke attended council against out what his organization believed an appropriation excessive for the proposed city At meeting firehouse. one such he was one of only people permitted five city council to speak this issue on public. behalf of the also open public He attended an again and there appropriation ordinance

meeting concerning appropriation. against out spoke city by mayor to be defeated appeared When his cause through the Tax council, petition drivе Lawrence initiated Association, obtaining a sufficient goal with the payer’s public referendum. Lawrence signatures to force number names officers and members whose was one of five Association circulating circulated. every petition sheet appeared on neighborhoods Rahway canvassed petitions personally Lawrence of the house, purpose to residents the explaining house petition obtaining signatures their on the petition drive and fifty homes and collected at least two He visited at least sheets. there is substantial credible signatures. Consequently, hundred courts’ determination that Law support the lower evidence to injected himself into the forefront voluntarily rence is surrounding appropriation the firehouse public controversy sue, for which he seeks to rise to the defamation gave which Moreover, thrusting purpose Lawrence’s obvious recover. controversy was to major role in the himself into Wolston v. influence the resolution of the issue involved. See 2701,2707, Ass’n, Inc., 157, 168, 99 443 U.S. Digest Reader’s S.Ct. Gertz, 341, 450, (1979); at supra, 61 L.Ed.2d 460-61 U.S. at 812. S.Ct. at 41 L.Ed.2d addition, in the local exposurе Lawrence received extensive press. prior January to the Ninth article On several occasions Moreover, provided Rahway newspaper. he releases to the press in prior the trial court determined that the few weeks to the article, publication ‍‌‌​​​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌‌​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​​‌‌‍January Ninth Lawrence’s name had of his most recent activities discussed in been mentioned and (some headlines) twenty published articles in approximately dispute. on the firehouse Lawrence therefore “en reporting joy greater access to the channels of effective significantly [ed] opportunity communication and hence a more realistic [had] private enjoy.” than individuals counteract false statements Gertz, at 41 L.Ed.2d at 808. supra, media, together with active This access to the taken Lawrence’s significant participation public controversy giving defamation, rise to the to agree leads us with the determination law, of the lower courts that as a is public matter of Lawrence figure purposes for the limited involved here.

Simpson secretary-treasurer

The record discloses that as of the Association, Rаhway Taxpayers Simpson actively participated in the petition drive. He was one of the five-member committee petitioners of appeared whose names on every petition sheet circulated the Association. Simpson personally ap collected proximately petition signatures aas result of his door-to- efforts, door and on at least one occasionhe wrote a letter to editor on the issue of the firehouse appropriation. The day petitions filed, Simpson were the Rahway notified News-Record and requested presence a photographer delivery. of at the others, The resulting photograph portraying Simpson, among over turning petitions, published was in the December 1974 issue of the News-Record.

Although the delineating Simpson’s factors less status are compelling Lawrence, than those we relating Simp- hold that public figure son is also purposes limited of the firehouse appropriation petition controversies. This conclu- scrutiny sion is Simpson’s derived from our close activities during controversy of the cоurse firehouse and the subse- quent petitions. courts, submission of perhaps Both lower Lawrence, because the much more extensive activity of failed to perceive Simpson similarly in the forefront of the controversy. The proper public figure determination of status a measuring degree plaintiff’s involves participation particular activity, comparison not a relative of the involve- ment separate participants. of two analysis focuses Simpson’srelationship to the controversy Although as a whole. his participation Lawrence’s, not as extensive as far it private exceeded the role figure. of a 466

V plaintiff Simpson, the verdict jury After the returned motion for a new trial. Lawrence’s granted plaintiff trial court of Law- prior its own dismissal In so court reversed doing the with- Appellate Division affirmed of action. The rence’s cause N.J.Super. at 396. new trial. 176 out order for a comment the the “actual malice” in order to meet previously, As stated Sullivan, must supra, public figure a York Times v. test of New defamatory statements prove convincing clarity with falsity knоwledge of their the defendant published by were 376 were true or false. disregard they of whether or reckless 725-26,11 “Reckless 279-80, L.Ed.2d at 706. at 84 at U.S. S.Ct. publishing refers to the disregard” in this context probable “high degree of awareness of their statements with a 209, 215, Louisiana, 64, 74, 85 falsity.” v. U.S. S.Ct. Garrison 125, 133 (1964). Thompson, Amant v. U.S. 13 L.Ed.2d St. 1323, (1968), emphasized 727, 20 L.Ed.2d 262 the Court 88 S.Ct. reckless evidentiary necessary prove standard stringent ness, stating: man is not measured whether a conduct [R]eckless reasonably prudent investigated publishing. have before There would have or would published, in fact the conclusion that the defendant must be sufficient evidence permit Publishing with as to the truth of his entertained serious doubts publication. disregard for truth or and demonstrates actual

such doubts shows reckless falsity at at 88 S.Ct. at 20 L.Ed.2d 1325, 267.] malice. [390 publishing material differently, Put the recklessness pub level of veracity approach must obviously doubtful Brooks, Ryan falsehood.” lishing “knowing, calculated 1980). (4th Cir. F.2d of reckless 4In Justice White reflected on Amant, examples St. supra, might including evidence, publi-

conduct be from circumstantial inferred on an cation based entirely fabricated completely story, publication are obvious call, unverified where there anоnymous telephone publication at reasons to doubt of the information 390 U.S. reported. the veracity 2d at 268. 20 L.Ed light stringent carefully this standard we have examined the record below to determine whether the evidence at trial present question was sufficient to as actual jury malice. reveals That examination that there was insufficient plaintiff. evidence of actual toward malice either For that reason granting the order Lawrence a new trial cannot stand.

Although a belief the truth of published in the matter is truth, to sustain defense insufficient the it is in relevant whether defendant determining the showed actual malice in regard falsity to the truth or of the publication. Restate See (Second) 581A, h, ment (1977). of Torts at comment § Here, honestly defendants believed that concededly mislead ing published statements the two articles were true. Their misconceptions arose from primarily their conversation petitions Hartnett in which he told them that the were under investigation possible swearing evidence of false for gery. Having by been informed petitions Hartnett that wit nessed by Simpson both Lawrence and among being were those examined, it thought reasonably impli defendants was a certain any investigation cation such would center around Simpson, activities of Lawrence and who were known newspaper key figures circulating filing to be the petitions. post-trial argument persuaded

Lawrence’s trial court to essentially reverse its earlier dismissal of his case was nothing upon than more this: based the information the defend ants from and City received Hartnett Prosecutor Romankow prior articles, publication they two have should false, known they that the articles were or least should have accuracy. question doubted their one of liability But is not figures when public reasonableness and media defendants are Rather, involved. of the malice” is on inquiry focus “actual a defendant’s attitude the truth falsity publica toward tion, Co., 116, 413 Dupler Inc., v. Mansfield Journal 64 Ohio St.2d (1980); subjective N.E.2d 1187 probable on his awareness of its 862; Playboy, supra, Rosanova v. 580 F.2d at and his falsity, Brooks, accuracy, Ryan supra, actual doubts as to its v. 634 F.2d Lando, 153, 199-200, at 732. Cf. Herbert 99 S.Ct. 115, 148-49 1635, 1660-1661, (Stewart, J., dis.senting) 60 L.Ed.2d (“actual (1979) malice” in the New York Times v. sense Sullivan will; nothing hostility has to do with or ill rather it concerns publisher’s knowledge falsity pub “state of of the of what he * * lished, *.”). all upon publishing not at his motivation in it interpretation judgment”

Neither “errors of nor “misconceptions” jury are sufficient to create a issue of actual Time, malice under the New York Times standard. See Inc. v. Pape, 279, 290, 633, 639, 45, 401 91 28 U.S. S.Ct. L.Ed.2d 53 Brooks, (1971); Ryan supra, v. 634 F.2d at Supreme 733. The expression Court has held that “if ‘the freedoms of are to have ’ * * * survive,” the “breathing space” they “need mis protection statements of this kind must have the of the First Time, and Pape, Fourteenth Amendments.” Inc. v. supra, 401 640, atU.S. 91 at 28 (quoting S.Ct. L.Ed.2d at 54 New York Times, 271-72, supra, at 376 U.S. at 11 L.Ed.2d at 701). insure the ascertainment publication of the “[T]o affairs, truth about it is essential that the First Amend ment protect some publications erroneous as well as true ones.” Amant, St. supra, 1326, 20 S.Ct. at L.Ed.2d at 267.

There is convincing” not “clear and evidence that defendants knew false, that the defamatory publications were they or that actually accuracy. Brooks, doubted their Ryan supra, See v. Rather, F.2d at 732. originally court, as by concluded the trial published defendants a perhaps irresponsible careless and account of the information received concerning scope City Attorney’s investigation. But the evidence in the record is “constitutionally present insufficient” to jury question Times, actual malice. supra, See New York 376 U.S. at 730, 11 711; Brooks, S.Ct. at Ryan L.Ed.2d at supra, 634 F.2d at 735.

VI published The articles are defendants as a unnecessary of law. is matter It for us decide the issue of as truth a defense. The having Court determined that both parties are public figures purposes for the limited of the fire- appropriation house petition controversy, defendants are protected by qualified First privilege Amendment unless there convincing is clear and they evidence that acted actual plaintiffs. malice, malice toward Whatever the evidence of it is present question insufficient to jury issue. Accordingly, granting plaintiff we vacate the order Lawrence a new trial judgment and reinstate the in favor of defendants. judgment We reverse plaintiff in favor of Simpson, and enter judgment for defendants.

SCHREIBER, J., dissenting.

Two highly motivated senior citizens are left without redress for publications holding up contempt libelous them to and ridi- cule the community they in which have lived many years.1 for This is the attempt result their sincere participate local One, government. is Simpson, brought down by Court’s interpretation unnecessarily expansive of what constitutes a “public figure.” other, Lawrence, The loses his claim because a publisher charged who him with is forgery found this Court disregard truth, not to have acted a reckless irre- spective of jury the fact that a could have found that publisher had basis no for the libelous statement. I dissent from holdings. both

I The First right Amendment of freedom of the press does not immunize a publisher liability printing from for and disseminat- ing libelous statements. When the First Amendment was advo-

1See appendix for reprint of initial article.

470 press was the settled view that the would adopted

cated and. it for comments and the responsible continue to be generally ensuing injury inflicted on the individual. See State 132, J., Allen, (1977) (Schreiber, concurring) 172-74 73 N.J. concept press Framers’ of freedom of the (pointing out that the restraint and that common law libel upon prior was centered untouched). Welch, Inc., was also Gertz v. Robert to remain See 381-84, 2997, 3027-28, 41 789, 822, 323, 418 94 L.Ed.2d U.S. S.Ct. J., (White, dissenting). Though subsequent 829-30 construction limited, of the First Amendment was not so the cause of action defamation, least where the statement false involved material, Rabban, factual unimpaired. remained See “The First Years,” (1981). Forgotten Amendment in Its 90 Yale ‍‌‌​​​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌‌​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​​‌‌‍L.J. 514 Supreme principle Court modified this in 1964 in New Sullivan, 254, 710, York Times v. 84 11 U.S. S.Ct. L.Ed.2d (1964). balancing press’s right In constitutional report on public against damage reputation affairs to the official, public limited to those situations recovery Court where the either public proved publisher official that the knew published the statement was the time it was printed false at disregard article in reckless for the truth. as a Insofar public concerned, official was this was considered to be an appropriate between accommodation the interest in an uninhi- press bited and the official’s need for redress of libelous state- ments. cases, companion Publishing Curtis Co. v. Butts and Walker,

Associated Press v. 388 U.S. L.Ed.2d (1967), principle applied the New York Times was “public figures” as well as application officials. The defining made without the term. It was not until Gertz v. Welch,2 (1974), 94 S.Ct. 41 L.Ed.2d 789 Gertz, plurality Supreme 2Prior to Court Rosenbloom v. Me- tromedia, Inc., 29, 1811, (1971), 403 U.S. S.Ct. L.Ed.2d advocated public that the determinant should be whether the related statements to a public issue. This rationale was based on the idea that issues should be guidelines. the Court laid down the monthly that case a Opinion, printed defamatory American publication, remarks charging Chicago a well-known in a lawyer participation campaign against police. lawyer repre- Communist This had sented the of a family young man who had been killed action, Chicago policeman only policeman’s in a civil not in the Supreme rejected criminal trial. The Court the notion that the lawyer public figure. was a of the New York Times justified application

The Court public public rule to officials and for figures two reasons. These usually enjoyed significantly greater individuals access to the news media opportunity and therefore had a more realistic importantly, public counteract false statements. More offi- voluntarily sought accepted cial and office public and had accept “necessary consequences.” public figures, As for they were a limited group who had invited attention and com- ment. Gertz decision defined the public figure (a) as those who

have especial prоminence “assumed in the roles affairs of society,” (b) those who have thrust themselves to the forefront of particular public controversies order to influence the resolution of the issues involved. We are con- particularly cerned in this case with category the second since the defendant has conceded that neither Lawrence Simpson nor had achieved generally “especial prominence leading in the society” affairs of pervasive notoriety,” to “such fame or so as to become “a Id. at 94 S.Ct. figure purposes for all and in all contexts.” at 41 L.Ed.2d at 812. The Court warned that it “would not lightly participation assume that a citizen’s in community and professional public figure affairs rendered him all Id. at purposes.” at L.Ed.2d 812. might recognizing debated thus this well freely, widely openly, government permit attacks officials. sharp 472 second prescribed group.

Gertz four characteristics of the First, voluntarily inject the individual to himself had into the Second, controversy public be a controversy. the had to one. Third, of public controversy, virtue the the individual became Fourth, a public range for a of figure person limited issues. the “special” had to prominence assume the resolution of the public 351, 3012, at question. Id. at 94 S.Ct. 41 L.Ed.2d at 812. The plaintiff pattern. Court found that the did not fit this He issue, had not the public thrust himself into vortex of the campaign against police. Communist had he engaged Nor the public’s attempt attention in an “its influence outcome.” figure He public public had not become a because of contro- versy.

After the Supreme Gertz continued to adhere strictly Court Time, Firestone, these four Inc. characteristics. In 424 U.S. 448, 958, (1976), 96 Firestone, 47 154 Mary S.Ct. L.Ed.2d the wife Firestone, of Russel of scion of one America’s wealthier industri families, al judgment obtained a libel against publisher of Time for its magazine report inaccurate of divorce judgment following a lengthy proceeding bitter matrimonial in Palm Beach County, Florida. case newspa received substantial per and Mrs. publicity press Firestone had called several confer ences during Supreme upheld trial. The judg Court ment rejected public contention that she figure. It through judicial reasoned a marriage “[dissolution proceedings' ‘public is not the controversy’ sort of referred to in Gertz, though the extremely marital difficulties wealthy even may be of portion individuals interest to some reading public.” 454, 965, at at S.Ct. 47 L.Ed.2d at 163. It Id. observed go that she was compelled to court the divorce action and concluded that ‘special prominence assumed no “[s]he ” in 454-55,96 resolution of questions.’ Id. at S.Ct. 965, 47 L.Ed.2d at 163.

The Supreme Court next public figure considered the concept in two day, Proxmire, cases decided the same Hutchinson v. 99 S.Ct. (1979), 61 L.Ed.2d 411 and Wolston v. Ass’n, Digest Reader’s 443 U.S. L.Ed.2d (1979). Hutchinson, Senator Proxmire was sued for arising award, defamation out of his “Golden Fleece” which he granted attendant publicity with to supposedly those involved in governmental expenditures. wasteful One such case concerned funding study by a Hutchinson of emotional behavior of certain rejected animals. The Court the notion that Hutchinson had regular “the and continuing [prior access to the media to the is one of the having accoutrements of become a award] public 136, figure.” 2688, at Id. at 61 L.Ed.2d at 432. The publicity by created the defamatory statement could not be used to make Hutchinson into “public figure.” Ilya second case involved Wolston who sued for defama- tory statements made about him in a published by book Reader’s Digest Supreme Association. The Court reversed low- er rulings court that he was a public figure. A special federal grand jury conducting major had been investigation into the activities of intelligence agents Soviet in the United States. When Wolston not respond grand did to a jury subpoena, at least seven news appeared stories New York Washington and newspapers. Subsequently, pleaded Wolston guilty contempt for his appear newspapers failure to and the reported this event. all, during period the six-week non-appearance between his and sentencing, fifteen stories were printed Washington New York papers. Thereafter the publicity subsided.

The Supreme Court observed that the mere fact Wolston voluntarily appear chose not to before grand jury was not decisive. It emphasized that the focus must be on the “nature extent an individual’s participation particular in the controversy giving 167, rise to the defamation.” Id. at 99 S.Ct. 2707, 460, 61 L. Ed.2d at quoting Welch, supra, Gertz U.S. at 94 S.Ct. at 41 L.Ed.2d at 812. The Court significantly observed:

A figure just individual is not private transformed into а automatically public becoming involved in or associated with a matter that attracts atten- public libel defendant more than mere newsworthiness to tion.... A must show

justify demanding burden of New York Times. [Id] application respond to The Court went on to state that Wolston’s failure to subpoena was not “calculated to draw attention to himself in public order to or influence the invite comment respect any issue.” Id. at S.Ct. at 61 L.Ed.2d at 460. point clearly

These cases rather in the direction that there compliance requisites must be with all the defined in strict Gertz before the handicap becoming public figure imposed. is When applied Simpson, these criteria are he falls far short of attaining public figure. guidelines the status of a Two were controversy met. The involved the proposed municipal expendi- $100,000 ture of an additional for a This unquestion- firehouse. Second, ably public controversy. was a Simpson voluntarily had However, injected himself into it. he did not virtue of that figure controversy public range become a for the limited issues special prominence involved. Nor did he assume in the question. resolution of the firehouse The trial court’s conclusion Simpson public figure that was not a was based on these two latter elements.3 trial,

At the time Simpson years was 68 old and had lived in Rahway years. for 45 He had in job retired 1973 from his as a production publishing plant. foreman in a book participa- His tion in local affairs had been confined to the local First Aid organization Rahway Association, and the Taxpayers’ a civic group formed to act as a watchdog municipal expenditures. over Simpson had written two letters to the editor of the Rahway News-Record on the firehouse controversy, arguing against one expenditures increased and the responding other to a critic majority’s conjecture to the 3Contrary that the lower court’s evaluation of was deficient Simpson because was dwarfed com Simpson’s participation (ante, 464), with that of Lawrence parison the trial court analyzed though situation “as Simpson’s [he in the was] only plaintiff case.” of the first letter. Of the thirteen articles related solely firehouse controversy trial, submitted into evidence at the only one of them Simрson. mentioned That accompanied article was by picture depicting petitions transmittal of the by mem- bers of the Taxpayers’ Association to City Simpson Clerk. part group of this photograph. Though Simpson spo- had ken at monthly Town meetings, citizens, Council as had other the record does not many, disclose on how if any, occasions he spoke on the firehouse issue. He obtained between 250 and 275 signatures petitions seeking on a public referendum on the question. The solicitation was carried on by about 20 others who ultimately 5,000 obtained approximately signatures. His appeared name on petitions as five, one of a committee of it being a statutory requirement petitions be in that form. He joined had also against the lawsuit City, which had rejected petitions ground public that a referendum was not available to review an ordinance appropriating funds. conclude, reasonably court,

One could as did the trial Simpson had not risen to that special prominence by virtue of his activities on the firehouse controversy. sought He had not to draw attention to himsеlf to public. influence the He was part of a team of who attempted citizens to have the vote on the Though issues. his may role have been somewhat more others, ‍‌‌​​​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌‌​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​​‌‌‍noticeable than he had not special prominence attained a because of publicity prior the local defamatory publica- to the tions. The trial worthy court’s comments are of repetition: fight. He was get not in the vortex of this He did not the newspaper publicity. attending He acted more or meetings, making less as a citizen in private an

occasional There’s a dispute. in the number of he made. He dispute speeches talked ... at least and I do not think he meets the standards. occasionally So the Court will litigation, hold that Mr. for the of this is not a Simpson, purposes figure. public Important policy reasons justify previ- this result. As noted ously, the New exposing York Times rule public officials and public figures to defamatory statements reflected an accommo-

476

dation between reducing press the inhibition on freedom of the Yet, right the individual’s to redress for defamation. this case demonstrates thаt an added dimension should be con- sidered, right the individual’s to free speech. today This Court recognizes that: in the law of [r]ecent libel and defamation have been developments directed preventing being discouraged toward from in the full and free exercise of people rights government.

their First Amendment to the conduct of their respect [Kotlikoff v. 89 N.J. (1982)] News, Community It “[cjriticism government has been said that of very is at the center of the constitutionally protected area of free discussion.” Baer, 75, 85, 669, 675, 15 Rosenblatt v. 383 U.S. 86 S.Ct. L.Ed.2d 597, (1966). The First protects Améndment an individual’s activity forums, in speaking public CIO, Hague v. 307 U.S. 496, 515-16, 954, 963-64, (1939), 83 L.Ed. 1436-37 canvassing and in neighborhoods homes, of private Hynes v. Oradell, Mayor 616-17, 1758-59, 96 S.Ct. (1976). 624-25, 96 L.Ed.2d 250-51 See also id. at S.Ct. at 1762-63, (Brennan, J., L.Ed.2d at 255-56 concurring). These twin First rights insure people seeking Amendment communicate with the public have two readily available chan nels public communication.

A freely expansive public figure notion of a in the context of this major case defeats the underlying purpose of the New York Times principle. It will throttle rather than foster debate and criticism. chilling effect on the right individuai’s free speech is real. This cаse may illustrates what occur. After newspaper libelous appeared, article Simpson stopped at- tending and speaking out at municipal meetings. council Law- rence, too, had second thoughts about his activity, though he decided to continue. Citizen participation in governmental local affairs is to be encouraged, not discouraged. Broadly constru- ing “public figures” to embrace townspeople whose only notorie- ty relates to debate over governmental a local controversy of the type exemplified in this case is counterproductive.

Professor Eldredge, in his treatise The Law of Defamation (1978), has graphically point: demonstrated the The Courts considering are in a most critical and delicate area in what persons, inject who themselves into controversies and take on voluntarily public positions matters subject which are to the New York should be clearly “public issues,” Times standard. A broad extension of this standard could be an instrument to freedom of in destroy whose name the extension very speech is demanded. great One of the needs in encourage good America is to more contemporary government, to in to people participate and stand and be out, speak up counted, on leading How important often do questions. busi- doctors, bankers, lawyers, ness raise their men, voices of and critical discussion of a issue complaint public around their willing luncheon and how seldom tables, are to the same they say thing give general guidance publicly which is needed? Par public too even our coming forthrightly often, bar associations show in out on timidity great guidance. matters in which could Par too they provide the citizen. often, of some willing stature in the who is to be in a or community quoted newspaper be interviewed on radio or television on controversial any important question, howling

seems to be a lone wolf in the wilderness. Such or not people may may spotlight stage “seek” the generally get of the of but into it public opinion they saying what believe by must be said. they citizen deeply Suppose private Magistrates charges criticizes the Board of in the of corruption dispositiоn gambling cases in against If there can be unleashed city. him a stream of Times, false defamation under the of New York protection his voice will soon be seeing made silenced, ineffective. And this who will dare to result, out speak again in the concerning same vein? Unbridled defamation matters of public concern was a tool the Nazis used in IIWar to pre-World Germany destroy men and messages render useless important what the men whose said, they needed to be heeded. How desperately much is freedom of speech really advanced a constitutional rule which “Once out on a says: you speak question game of interest become fair public for the John Birch you Society, every venomous and for editor, else who wants newspaper everybody destroy you and the of what power you say?” argument I justification realize that this cuts both fully But the ways. only Times, for New York cutting in its drastic down of the of actionable scope (and right its defamation, destruction within its scope precious name) encourage good vindication of one’s is that it is in order to necessary privilege out on people in will in some speak important questions. If, fact, encourage situations discourage out then and, others, people speak them, gain weighed against the net for free only should be the value of speech striking the balance on the reputation, scale of constitutional law. We cannot determine the putting as some balance, writers seem to do, by merely value-weight good value-weight on one side of the scale reputation and the uninhibited free completely the other. That smacks too much of speech putting omitted) (footnotes butcher his thumb on the 283-85; scale. [Id. ]

II trial court that there was sufficient I with the agree also warranting to Lawrence’s claim respect evidence with submis- jury. “actual malice” to the sion of the issue of defendant’s New York Times defined publica- actual malice to be either the tion of false or actually a statement known to be publication disregard falsity. reckless of its or truth 20 L.Ed. 727, 1323, Thompson, Amant v. 390 S.Ct.

St. relies, (1968), does not upon majority heavily 2d 262 which the so may may what or not constitute a bright draw a line between Rather, reсognizes it that no disregard reckless for truth. simple disregard.” definition exists for “reckless “Reckless dis regard fully encompassed ... cannot be in one infallible defini through tion. its outer limits will be marked out case Inevitably ” 20 L.Ed. 730, 1325, Id. adjudication.... at at by case 2d at 267. Amant St. part opinion

The stressed a majority has by that indicates that reckless conduct is not measured a reason- there must sufficient ably prudent man standard and be evidence to demonstrate “that the defendant in fact entertained (Ante publication.” serious doubts as to the truth of his at 466, quoting 390 U.S. at 88 S.Ct. 20 L.Ed.2d at Amant, in St. 267). message only If this were the I would be However, agree majority’s with the conclusion. constrained St. Amant also states: brought in a defamation action a cannot, defendant official by testifying insure a favorable verdict that he however, automatically by published with a belief that the statements were true. The finder of fact must determine good good whether the was indeed made in faith. Professions of publication faith will be for where a is example, story unlikely persuasive, prove imagination, is based fabricated is the of his defendant, wholly by product be

on an unverifiеd call. Nor prevail will anonymous telephone they likely allegations a reckless when the are so publisher’s inherently improbable only man have recklessness be found would them in circulation. Likewise, may put or the where there are obvious reasons to doubt the of the informant veracity 20 L.Ed.2d at of his U.S. at 88 S.Ct. at 267-68] accuracy reports. [390 passage imposes publisher This on the an element of good Thus, publisher faith. where a acts based on an unverified anonymous call he telephone though may even in fact not truth, entertain doubts serious about he may be found to disregard have acted with a reckless of the truth. The factual setting in Thompson, sheriff, St Amant is instructive. deputy Amant, political candidate, sued quoting St. in a campaign speech Albin, made statements about him D. J. a member of Thompson prove local union. could that the statements were false, defamatory and but could not show that St. Amant knew Thus, falsity. their the issue was whether Amant St. made his speech disregard with a reckless truth. The Court decided that upon St. Amant’s reliance Albin was not reckless the under circumstances. Amant St. had relied on other occa- upon sions information received from Albin without incident. prior dealings give These sufficed to Amant confidence St. in Albin, repetition so that his Albin’s statements not a disregard reckless of the truth. not proposition

St Amant does stand for the that libel defend- immunity testify ants have so as long they they that believed they what wrote was true. courts will examine the circum- stances and decide whether individual who should have truth, entertained serious doubts about recklessly went ahead. This interpretation is the that several federal circuit have courts attributed to Amant St Co., (7th

In 1976), Carson v. Allied News 529 F.2d 206 Cir. published story indicating Carson, defendant had Johnny that entertainer, late-night the well-known had moved the site of his television show as to be so near woman who caused the had breakup marriage. of his first The facts showed that woman in question only not did not live but California that Carson did not meet her until after he and his first wife had separated. The the reporter court found had no basis for attributing published much his story, statements his 480 possible—re- consequently found recklessness

imagination, import reporter actually whether the believed gardless of to be truthful. story his Ysrael, (7th F.2d Federation of Teachers Guam

Cir.), denied, 42 L.Ed.2d cert. 419 U.S. S.Ct. issue as to whether the (1974), jury there was a the court held “malice.” The court wrote: statements were made with he did not know whether what he said was true. He admitted that repeatedly nothing, nothing, to his admitted that he did or almost He verify repeatedly charges. that he knew of As to most of his he admitted statements, repeatedly no he either relied rumor them; facts upon unspecified upon support nothing that he believed that what he said was true. at all. He asserted simply enough to a directed verdict in his favor. If it Such an assertion is not support swearing mere as a matter of defeat action to which the were, could, law, any New York Times are See St. Amant v. applicable. Thompson, principles 20 L.Ed.2d 262. 390 U.S. 727, 732, [Id. 439] [1326], (2d 1969), 414 F.2d 324 Ginzberg, In Goldwater v. Cir. argued that he should not be liable for defendant psychological stability remarks made about Goldwater’s Senator on other sources. While the because he based his observations Ginzberg merely repeat did not these state- court did find that them, it emphasized ments but added certain innuendos also investigation important has been аn fact adequate lack of proving disregard “reckless for the truth.” the article Since news,” thought did not contain “hot Circuit that the Second charges thorough investigation, seriousness of the called for a “only slip- the careless utilization of yet the evidence revealed investigative techniques....’’ shod and Id. at 339. sketchy See Inc., Newsweek, (5th Vandenberg also 441 F.2d Cir. 1971) (stating Supreme Court has held that actual malice “[t]he story when for a not may investigation be inferred which is circumstances”). grossly inadequate ‘hot news’ was in by publisher defamatory charges A belief that otherwise preclude finding liability. are true does not a Jurors should concerning be allowed to all the evidence defendant’s consider deliberating upon acts in published whether defendant good actual publisher malice. Did the act in faith? Was there a source of the information? Was that source reasonably, from publisher’s standpoint, upon? relied The Amant stan- St. dard, it, I way upon as understand will in no trench the freedom of a responsible press. determinations had to be in in

Factual made this case order to ascertain the circumstаnces under publisher which the acted. There was a conflict in the testimony. majority opinion accepts Bauer’s version of the information related him However, Hartnett. he Hartnett testified that had at no time stated or forged any signatures intimated that Lawrence had or falsely propriety signatures sworn to the on the petitions. great pains clarify At trial Hartnett went to to. his publisher. conversations with the He repeatedly maintained that he had never linked either Lawrence Simpson or with the forgeries. fact, he linking denied ever Lawrence to the charge believed, If swearing. Bauer, false Hartnett is then who asserted Hartnett was the source of the newspaper’s infor- mation, had no implying basis for that Lawrence had been guilty of false forgery swearing connection with the petitions. Despite this, printed Bauer material n relating alleged questionable It forgery. Lawrence to an is good whether Bauer acted faith under these circumstances. certainly by jury Publication could be held to fall within the scope disregard reckless for the truth. The trial court acknowledged granted as much when it Lawrence new trial.

I would affirm.

APPENDIX part For part—Chief vacation in and reversal Justice PASHMAN, ‍‌‌​​​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌‌​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​​‌‌‍CLIFFORD, HANDLER, WILENTZ and Justices POLLOCK O’HERN—6.

For affirmance —Justice SCHREIBER—1. ANDERSEN, COMPLAINANT, COMPANY, LEIF E. v. EXXON U. A.; SULLIVAN, L. S. F. APPELLANTS.

Argued —Decided May November 1982.

Case Details

Case Name: Lawrence v. Bauer Publishing & Printing Ltd.

Court Name: Supreme Court of New Jersey

Date Published: Apr 27, 1982

Citation: 446 A.2d 469

Court Abbreviation: N.J.