*1 subpoena expressed, I would order the For the reasons result. immunity against any State to accord require the quashed or of the con- from the disclosure incriminating derived evidence records, commen- production, of Guarino’s tents, as the as well against privilege common-law of our the dimensions surate with I Accordingly, dissent. self-discrimination. join opinion. in this and POLLOCK CLIFFORD
Justices WILENTZ, Justice remandment —Chief For reversal and O’HERN, and STEIN—4. GARIBALDI Justices CLIFFORD, HANDLER and POL- For affirmance —Justices LOCK—3. SISLER, AND CROSS-APPEL PLAINTIFF-RESPONDENT
MAYO S. APT-TO-ACRES, INC., LANT, A CORPORA NEW JERSEY AND CO., PLAINTIFF-CROSS-APPELLANT, TION, v. GANNETT CORPORATION, INC., DEFENDANT-APPEL A DELAWARE LANT AND CROSS-RESPONDENT. 1986. Argued January October 1986 Decided *3 McCrory, bar, John B. a argued member of the New York appellants (Strauss cause for cross-respondents & Hall, attorneys; Bernius, McCrory, John B. and Robert C. a bar, counsel; member of the New York Rags- Richard A. dale, brief). on the respondent argued cause for H. Thiele
Richard Hermes, attorneys). (Thiele & cross-appellants curiae, argued cause for amicus Cafferty Thomas J. (McGimpsey Cafferty, attor- Jersey New Press Association & neys). was opinion of the Court delivered
HANDLER, J. upon us consider standard of
This suit calls what libel Jersey New law be under with liability should established by media defendants respect to tortious defamation committed “public figure” a under the First against plaintiff is not who ordinary negligence Both held that Amendment. courts below determining such def- proper for whether was the standard They of the view that were amation was actionable. “private person” should not be essentially who substantial, burden in required “actual malice” to bear the defamation, required might as otherwise be prove order to free-speech where principles situations under constitutional official” or person “public can be considered the defamed renew their contention as “public figure.” Defendants now stressing that imposing liability, appropriate standard in a concern and plaintiff involved himself matter proving defamation to the diminished burden not entitled private persons; they in addition claim error truly accorded brings before rulings. Plaintiff other trial court likewise two regarding the amount alleged trial errors the Court several damages. his
I. actions, are case, The in this as most libel-defamation facts Sisler, 1960’s,plaintiff, Mayo and several early critical. In the State Bank the Franklin Franklin businessmen co-founded other 1980, bank). until (FSB inception time FSB’s From the or Board of the plaintiff served as President Chairman period During plaintiff became bank. this also involved in breeding several real estate and racehorse projects. substantial positions In 1980 Sisler retired from all official bank order to interests, pursue including operation the his other business of a wholly-owned corporation, Apt-to-Acres, engaged in breeding thoroughbred standardbred and horses. Courier-News,
In August newspaper a with a 58,800 in Jersey, published circulation of central New a three concerning alleged article improper by series loans made the article, Franklin State Bank. The initial not at issue in this case, 15, 1981, appeared August reported on and that State and investigating questionable Federal were FSB for authorities reports. article, loans issued on credit In the falsified second 19, 1981, defendant, August Meddis, which ran on Sam writer, reported company Courier-News staff with which plaintiff was associated had sold and land to leased the landlord of an company investigation falsifying auto under for credit reports in applications loan to by FSB. While facts related true, plaintiff this article objected implications were newspaper’s arose from the use of word “ties” headline probe,” “Bank officials have ties firm in loan with to the newspaper’s plaintiff’s characterization dealings with company “private.” auto and its landlord as The third series, published article in August on again Meddis, plaintiff receiving written accused undercollater- alized loans from Franklin State Bank finance his horse farm, fact, Apt-to-Acres. plaintiff adequately had secured loans; his misinterpreted had Meddis several deeds and published records. The August Courier-News retractions to the August 19th August 20th articles on Septem- 1981 and ber 1981.
Fatefully, published time the Courier-News these Guida, articles negotiating Louis leading with syndicator, horse have three horses stand standardbred stud Apt-to-Acres breeding 1982 or 1983 seasons. Two of horses, Computer, three Seahawk Hanover and were de- *5 among top stallions of expert trial as the three the by a scribed third, Niatross, season, breeding the had lowered the while a trial pacing for mile and described world record the Century.” the midst of these expert as the “Horse anonymously mailed the three Courier- negotiations someone plaintiff in Guida thereafter informed articles Guida. News articles, the although personally he did not credit a letter that veracity on their and was thus he not take a chance could negotiations standing Apt- for the three horses at terminating to-Acres.
Plaintiff, Apt-to-Acres, for together filed suit def- with Court, Meddis, against Superior Sam The Courier- in amation Inc., parent Co., Company, of the Couri- and Gannett News er-News, requested general damages Plaintiff as defendants. anguish, damages reputation special and mental for loss of horses, punitive from the arising out of lost stud fees trial, Apt-to-Acres corpo- as court dismissed damages. At The Company as a defendant. trial plaintiff rate and Gannett figure” in plaintiff “public was not judge also determined proof applying strict “actual malice” burden terms of Sullivan, York 376 U.S. first described New Times (1964); accordingly instructed the it L.Ed.2d if it the defend- jury plaintiff for the found to return verdict publishing article. negligent ant had been request to submit Additionally, plaintiffs denied the trial court damages an- punitive issues mental jury a verdict for the guish jury. The returned $850,000 in $200,000 general damages and $1,050,000, damages. special “private ruling that Sisler was a appealed the
Defendants standard, negligence figure,” trial court’s use of a reputa- negligence injury and of adequacy of the evidence special dam- tion, plaintiff’s “standing” to recover well as as corporation. wholly ages by Apt-to-Acres, his owned sustained rulings court con- cross-appealed several of the trial Plaintiff Division quantum damages. Appellate cerning the *6 respects. N.J.Super. affirmed the trial court all 199 307 (1985). standard, the negligence use of the affirming Bauer, Appellate Division reasoned that Lawrence v. 89 N.J. 451, denied, 999, 358, cert. 459 U.S. 74 L.Ed. 2d S.Ct. (1982), “public figure” in which the Court found to be a subject under the First Amendment and thus to the “actual burden, implied non-public fig malice” a lesser standard for Appellate plaintiff’s ures. The Division did address most of merits, cross-appeal deeming cross-appeal on the to be by plaintiff’s request appellate waived that the court consider cross-appeal subsequent only its if trial on the issue prejudice jury N.J.Super. would not the initial award. 199 at 329. granted petition plain-
We
defendants’
for certification and
(1985).
cross-petition.
tiff’s
This case in the unhappy another cohab- defamation, itation protective tort of which reputation, guarantees individual’s with constitutional protect speech press. serve to free and The tort of defamation and the and speech constitutional common-law ideals of free long competed have control of liability for over standards for defamatory speech. false history,
For most of American state common law refereed this free Generally, contest of federal intervention. the states allowing go favored defamation actions to at forward expense of the speech. values embodied in constitutional free only prove publication defamed citizen had a false subject hatred, ridicule, general would him to contempt, reputation damage presumed. exception would be With the privileges speech of a few isolated qualified absolute and for particularly protecting, publica- worth considered most false plaintiffs. Any poten- tions resulted defamation verdicts complications tial First Amendment or similar constitutional had rationale that were discarded under the society” did not merit constitutional “value to and thus no Welch, Inc., 323, 369, Gertz v. Robert U.S. See protection. J., 3022, 789, (1974) (White, 41 L.Ed.2d 2997, 94 S.Ct. Eaton, dissenting); “The American Law of Defamation Welch, Inc. An- Through Gertz v. Robert Beyond: An 1349, (1975). Primer,” 61 Va.L.Rev. 1350-64 alytical Sullivan, supra, In New York Times v. Supreme realigned the Court L.Ed.2d and tortious defamation. between the First Amendment
balance
“profound
background
of a
national commitment
Against
uninhibited,
public issues should be
principle that debate on
id. 84 S.Ct. robust,
wide-open,”
11 L.Ed.2d
*7
701,
“prohibits
that
First Amendment
at
the Court declared
recovering damages
public
official from
proves
he
that
relating to his official conduct unless
falsehood
is, with
made with ‘actual malice’ —that
the statement was
disregard of
knowledge
it
false or with reckless
that
279,
726, 11
Id. at
280,
S.Ct.
it
84
at
whether was false or not.”
holding
The
from the Court’s belief
L.Ed.
2d at 706.
stemmed
law,
press,
spectre of libel
often
acting
under the
true,
editing
many
in
constitution
engaged
self-censorship,
out
proving
of the difficulties of
ally-protected statements because
doing
expense
so.
truth of statements in court and
721,
271-72,
84 S.Ct. at
11
at 701.
Id.
at
L.Ed.2d
York Times
to
the 1960’s extended New
Subsequent
in
cases
v.
Co.
Publishing
Curtis
“public figures,”
speech concerning
(1967),
Butts,
18 L.Ed.2d
130,
1975,
1094
87 S.Ct.
U.S.
388
reports matters
involving “false
privacy
to invasion of
suits
Hill,
Time,
87 S.Ct.
374,
Inc. v.
385 U.S.
public
interest.”
impor-
534,
(1967).
emphasized the
17 L.Ed.
2d 456
These cases
public
of information on matters of
tance of
dissemination
388,
Time,
Hill,
supra, 385 U.S. at
87
Inc. v.
interest. See
Alabama,
542,
Thornhill
(quoting
at
264 nation, in this all must embrace issues about which information appropriate is needed or to society enable the members of cope exigencies period.”) with the of their Their holdings part in stemmed from the idea that relating public figures officials and often coincides with matters that would be Louisiana, legitimate public interest. See Garrison v. 379 64, 77, U.S. 209, 217, S.Ct. 125, (1964) 85 13 L.Ed.2d (public-official protects paramount rule interest in a free people flow of information to the concerning public offi- Butts, cials); Publishing supra, Curtis Co. v. 388 U.S. 154, S.Ct. (public L.Ed.2d at 1094 interest in circula- public figures tion of materials on involved in that case “not Times”). less than that singular involved New York importance speech involving ascribed to concern reached fruition 1971 when a plurality three-member de- clared requirement the “actual malice” applied to “all discussion and involving communication matters of concern, general regard without persons to whether in- anonymous.” volved are famous or Rosenbloom v. Metrome- dia, Inc., 29, 44, U.S. 1811, 1820, 91 S.Ct. 29 L.Ed.2d (1971).
However, Welch, Inc., years three Gertz v. Robert later supra, L.Ed.2d the Court retreated from the Rosenbloom position, appli- limited the cation of the New York Times standard to “public figures” “public According Court, officials.” persons, these who have “thrust themselves to the *8 particular public forefront of controversies” “usually enjoy significantly greater access communication,” to the channels of effective justly could more be burdened with the Id. at 344-45, actual malice standard. 94 3009, S.Ct. at decision, L.Ed.2d at 808. With the Gertz classification public of an private figure individual as a became the critical determination in defamation actions.
Recent
Supreme
decisions of the
Court have reasserted the
relevance of the nature
speech, stressing
of the
that “not all
speech
equal
is of
importance.
First Amendment
speech
It is
heart
that is ‘at the
of the First
on
of
concern’
‘matters
”
Bradstreet,
Inc. v.
Dun and
protection.'
Amendment’s
2939,
Inc.,
758-59, 105
Builders,
749,
472 U.S.
S.Ct.
Greenmoss
(citations omitted).
593,
(1985)
86 L.Ed. 2d
2945,
“[I]n
private
contrast, speech
purely
concern is of less
on matters of
759,
2946, 86
105 S.Ct. at
Id.
at
concern."
Amendment
First
Philadelphia Newspapers, Inc. v.
603;
also
L.Ed.2d
see
at
1558,
(1986)
-,
Hepps, 475 U.S.
S.Ct.
n. 606 n. 13 “public who is a justify treatment one fairness similar Gertz, normative con figure.” compelling “a explained As public and underlying the distinction between sideration like offi plaintiffs” public figures, defamation prominence in the cials, especial have either “assumed roles forefront society” affairs of or “thrust themselves influence the resolu particular public order to controversies issues,” and comment.” tion of the and thus attention “invite[d] 344-45, Welch,Inc., 94 S. Ct. supra, Robert Gertz v. reasons, communi at 808. For those L.Ed.2d “[t]he *9 266 assumption public media to act that
cations are entitled on the public voluntarily figures exposed have themselves officials defamatory injury risk of from concern to increased falsehood 3010, 345, them.” Id. at S.Ct. ing 94 at 41 at 808. L.Ed.2d contrast, individuals, private having accepted public “not office ” ordering society,’ role in or assumed ‘influential cannot be relinquished presumed part to have of their interest protection good of and are their own name deemed “more Ibid, (citation omitted). deserving recovery.” They of may accordingly be allowed establish actionable defamation under Thus, proof. actions, less onerous burden defamation permit imposi to the considerations fairness individual and, proof public persons strict on tion of a burden converse ly, lighter placed counsel a burden to be on who those have public remained out of the domain. theme subject second decisional focuses on the matter of speech speech itself. If the to a relates matter
concern,
implicates
“profound
it
national
commitment
principle
uninhibited,
that debate on
issues
should
be
Sullivan,
robust,
supra,
New York Times v.
wide-open,”
U.S.
S.Ct.
L.Ed.2d at 701
(emphasis
at
at
added),
rung
and “occupies
‘highest
hierarchy
”
Bradstreet,
Dun and
Inc. v.
First Amendment values.’
Builders, Inc.,
supra,
Greenmoss
472 U.S. 105 S.Ct. L.Ed. 2d at
Myers,
v.
(quoting
Connick
U.S.
138, 145,
1684, 1689,
103 S.Ct.
(1983)).
The interaction of
two
under
these
themes
the First Amend-
combinations,
yields
ment
possible
four
which
no
are
means
static or immutable. Three of these
identi-
combinations were
fied in Philadelphia Newspapers
Hepps, supra,
475 -,
106 There,
Supreme
L.Ed.2d 783.
Court,
holding
requires
that the First Amendment
figure
prove
is false
he seeks
when
*10
public
speech of
con-
for
media defendant
damages against Amend-
of First
accommodation
cern,
the federal
summarized
interests.
reputational
individual
ment and
official or
is a
concern and the
public
is of
plaintiff
When the
public
speech
to surmount a much
figure,
the
clearly requires
plaintiff
the Constitution
public
recovering
defendant
than is
from a media
higher
before
barrier
but
the
of
concern
When the
is
public
common law.
speech
raised
the
by
the
figure,
still
Gertz,
the Constitution
supplants
as
is a private
plaintiff
in at
are,
the constitutional
common
but
law,
requirements
standards
range,
forbidding
is a
than when the
public
less
plaintiff
of their
least some
the
is
figure
exclusively
of
concern. When
speech
the
is
public
and
speech
figure, as in Dun & Bradstreet,
is a
and the
private
concern
plaintiff
private
change in at least
force any
do not necessarily
the constitutional
requirements
106 S. Ct. at
at -,
[Id.
of the common-law landscape.
of the features
some
L.Ed.2d at
792.]
affairs of a
case,
private
the
speech
concerns
fourth
In a
re
requirements are
the constitutional
person” and
“public
private concern. See
laxed,
speech matters of
all
on
as with
Builders, Inc., supra,
Bradstreet, Inc. v. Greenmoss
Dun v.
(speech on
759, 105
III. concerns, limitations the constraints and Reflecting these on whether primarily focus First Amendment imposed public topic legitimate to a defamatory speech relates first figure. We turn plaintiff ais concern and whether published in the relate to whether articles Courier-News legitimate public These topic interest. articles concerned dealings company plaintiffs being investigated financial with a loans, questionable related that had obtained Although from under-collateralized loans FSB. the trial court controversy” determined that “no existed before the articles, publication of the it is not clear whether the court subject-matter concluded that the of these articles one legitimate public. interest to Concededly everything newsworthy “not is a legitimate concern, sorting matter of such matters *11 may from of a more be Dairy those nature difficult.” Stores, Co., Inc. v. Sentinel Publishing 104 N.J.
(1986). Nevertheless, govern public in view of the historic and banks, mental with role operation particular concern the of ly stability, propriety their financial we are that satisfied the of by loans former-president substantial issued an area to its bank topic legitimate public and founder is a of “The interest. banking of intimately business ... the affects commercial wel fare people____” and business interests of the First Nat’l Whippany Bank v. Trust Co. County, Morris 76 N.J.Su- of per. (App.Div.1962). Manifesting importance, their banks subject are to regulation. both the extensive Federal and State 1-3805; See C.F.R. N.J.S.A. 17:9A-1 -369. Statutes § provide regular independent also for supervi- examination and Moreover, sion of banks. See 17:9A-252 to N.J.S.A. -265. special prescriptions by have been for enacted loans a bank to its or director officer. executive See N.J.S.A. 17:9A-72. The policies particularized guidelines that actuated the incestu- ous high-ranking loans between a bank and its officers ensure of, in, integrity public financial banking confidence system. policies
These influence our assessment the transactions plaintiff. between FSB and Clearly public dangers that are insider-dealing inherent in with totally a bank are not reduced a a former substantially lessened when bank deals with or motivating governmental con- Accompanying and this insider. public’s banking in the conduct of the cern is the interest may go beyond, industry. encompasses, This but interest regulatory itself. Private actors at all government concerns of levels, including shareholders, analysts, depositors,' financial customers, legitimate interest in bank’s potential have a press only in dealings. important The thus has an function respecting banking reporting activity but also in government informing bank These considerations about conduct. published by the the articles Courier- lead us to conclude that News, security treating adequacy of for substantial loans director, to a matter plaintiff, its former relate made FSB legitimate public interest. articles, being topic subject The interest, impos- legitimate strongly militates favor of upon ing high proof plaintiff. strict Neverthe- or burden impose less, is fair to we must determine whether it First plaintiff’s role or status. Under the burden view of Amendment, determination is embodied this fairness public/private person classification. court, finding plaintiff had trial not assumed controversy attempted respect any with
active role matter, public opinion ruled that to influence on *12 figure. supports this determina public not The record prominence in the “especial attained tion. Plaintiff has not figures; all-purpose public society,” the trademark of affairs of public figures, has nor, limited-purpose as is characteristic of particular public plaintiff to the forefront “thrust [himself] of the issues in the resolution controversies order to influence Welch, Inc., supra, 418 U.S. at involved.” v. Robert See Gertz 808; 3009, 345, also Lawrence v. 94 at 41 at see S.Ct. L.Ed.2d (plaintiff 451 Printing, supra, 89 N.J. Publishing Bauer of new fire organization opposed to construction who founded meetings, house, public and initiated spoke on at out the issue public petition limited-purpose figure on drive was firehouse controversy). Plaintiff does not command “a substantial interest,” see independent public Publishing Curtis amount of Butts, 154, supra, 1991, Co. v. U.S. Ct. at at S. 18 L.Ed. 1111, 2d at nor does the record disclose that he achieved Welch,Inc., see Gertz v. Robert “pervasive notoriety,” fame or supra, 418 U.S. 94 S.Ct. 41 L.Ed.2d at Township Moreover, in even the Franklin area. it does not plaintiff appear consciously sought has attention on this public controversy. Particularly retirement, plaintiff since his publicity, concentrating has avoided on his business Digest Ass’n, Inc., See Wolston Readers affairs. 443 U.S. 157, 168, 2701, 2707, S.Ct. (1979) 61 L.Ed.2d (plaintiff, respond grand who jury subpoena, failed to a not a public figure because action was calculated to draw “[not] attention to himself order to invite comment or influ any issue”); respect ence with Hutchinson v. Proxmire, 111, 135, 2675, 2688, 61 L.Ed.26. (1979) award, (recipient of Golden Fleece not who “did thrust himself or his views into controversy to influence others,” public figure). not
It thus seems clear though that even the Courier-News subject public concern, articles relate to a would not public person be considered under conventional federal consti- analysis. tutional We believe that under the circumstances of light this case in interpretations, of current decisional the First require plaintiff prove Amendment would not these published articles were with actual malice order to demon- strate actionable defamation.
IV. earlier, As noted federal constitutional standards this area are totally preemptive. The decisions instruct us that long as proof as a burden less onerous or exacting than applied actual malice is not in a situation that entails the
271 matter, respect to a public figure with reputation of a liability drawn from defamation may apply standards states liability impose without long they as do not own “so their laws 347, Welch, Inc., supra, 418 at U.S. 94 v. Robert Gertz fault.” 3010, consequently remit- at 809.1 We are S.Ct. at 41 L.Ed.2d liability the standard of to Jersey law to determine ted to New plaintiff. be borne traditionally have offered and common law
Our constitution speech for on matters of concern. protection scrupulous I, speech.”2 protection is of Art. 6 “The entire thrust § 192, 176, denied, Monthly, 89 N.J. cert. Jersey Maressa v. New 211, (1982). 169 This S.Ct. 103 74 L.Ed.2d U.S. 459 scope language than the sweeping provision, more rights Amendment, speech supported broader free has First Schmid, counterpart. E.g., v. N.J. State than its federal Schmid, Princeton Univ. app. dism. sub nom. (1980), (1982) (right of free L.Ed.2d campus). Legislative university enactments speech on Constitution, evincing paramount for free concern echo the Law); (Shield N.J.S.A. press. 2A:84A-21 speech dom of and Thus, supra, Jersey Monthly, N.J. 176. our Maressa v. New decisions, light Jersey’s of New pronounced in the benevolent speech, have stressed the to free constitutional commitment applies statement "makes substantial 1This limitation when Welch,Inc., supra, reputation apparent." 418 U.S. at danger v. Robert to Gertz Courier-News statements in the 41 L.Ed.2d 810. The 94 S.Ct. unquestionably that characterization. fall within I, Jersey provides: Constitution 2Article 6 of the New ¶ publish person may freely speak, on all Every his sentiments write right. subjects, being shall be responsible No law for the abuse of press. liberty abridge In all passed or of the restrain libel, may given prosecutions in evidence for the truth be or indictments charged appear jury as jury; that the matter if shall to the it true, justifiable good published motives and and was with libelous right ends, jury party acquitted; shall have shall be law and the fact. determine the *14 vigor Jersey speech which fosters with New and nurtures on public concern. matters of
Nevertheless, precedents totally have subjugated our the speech. instance, individual’s interest in the name of free For privilege, protected the fair comment which at common law concern, opinions public topics of also took into on account Implicit in the individual fairness. determination of what was a legitimate public purposes matter for of concern of accrual of privilege a fair comment was fairness assessment based on expectation exposure of publicity. voluntariness or Jersey protection New courts thus accorded fair comment speech regarding individuals who had assumed the risks of Community News, See v. The publicity. N.J. 89 62 Kotlikoff Green, officials); (1982) 239, supra, Leers v. (public 24 N.J. 259 Ass’n., (same); N.J.Super. Mick v. American Dental (dentist (App.Div.1958) engaged “campaign” against in fluo Co., Morning v. ridation); Ledger Hermann Newark (labor leader); N.J.Super. see also (App.Div.1958) Note, Welch, v. Opinion Gertz Robert Inc.: The “Fact and After Privilege,” Rutgers 81, 124 L.Rev. (1981)(“Fair Evolution of regarded particularly appropriate comment as those personalities offering public inspection issues themselves ”); Note, Comment,” “Fair 62 Harv.L.Rev. and criticism ... * * * (1949) (“subjects of 1208-09 interest include * * * * * * anything inviting public ”).3 else attention involving privileges, favoring 3Other decisions while interest heavily, recognized reputational have also and accounted for the interests of instance, newspaper report the victimized individual. For official proceeding, "qualified protected by privilege,” must be "fair and accurate" Co., Morning Ledger and made without See v. malice. Coleman Newark 29 N.J. (1959). Analogously, qualified reports privilege, 376-79 to accrue a judicial proceedings by prosecutors or official statements must relate state judicial proceeding prosecution. ments in the made course of a or a See Rogers Co., (1949). v. Courier Post 2 N.J. viewed Courts have qualified privilege accommodating “competing political as social and inter individuals, hand, protection reputation ests [of] on the one the fair comment implementation of our most recent Court, Stores, Dairy Inc. Sentinel Publish- privilege, the importance of Co., underscored the supra, N.J. ing products that affect the health and speech concerning law that statements It held as a matter common welfare. interest, regarding affect the products that fact water, spring case, commercially-sold bottled purity of the actual-malice stan- protection as comment under merit fair is instructive. exemplified Dairy Stores analysis The dard. rejected “public figure” device as “an awkward Court *15 corporations determining whether statements about method of amendment,” first products protected by the id. or their are expect, and products can all sellers recognizing that accept, public products. of their Commercial must examination products inspection, pre- their and vendors have submitted attention, sumably public accompanying risk invite with defamatory commentary. dis- or When disparaging occasional product, paraging defamatory remarks are made about or pale comparison in to of fairness the diminished considerations legitimate public public’s right products to know about Thus, corporation to a with the it is not unfair burden interest. regarding its commer- malice standard when statements actual legitimate products implicating matter of a cial activities public published. concern are reputation, involving
In a case individual defamation along analytical lines but proceeds similar fairness assessment case, Dairy like backdrop. Although this against a different Stores, public a matter of statements on involves libelous an concern, Dairy in that the is it differs from Stores interest, engaging in an personal reputational with a individual transaction, corporate than a commer- essentially private rather the fullest 'interest of the on the other the collective security public of their disclosure on matters within scope freedom of officials make Morning Ledger 29 N.J. at Co., duties...Coleman Newark supra, public (citation omitted). product public a enterprise selling through regular cial to the advertising marketing channels. The commercial seller of product consuming public presumed can be to have possibility assumed the risk of the relating attention However, product. presumption is appropri- such private ate in the engaged case of a individual personal subject matters. For that reason whether it is fair to proof such individual to strict burden of in order to establish actionable defamation must determined on a be case- by-case basis. making law, Jersey the fairness assessment under New we public/private person
build from the federal
construct. We
agree
premise
with the basic
of the federal distinction between
private persons:
subjugation
that the
of the individu
reputational
al’s
goals
interest
favor of
societal
most
disturbing
involuntarily
when the individual has
and unex
See,
pectedly
e.g.,
become
in a
Wol
embroiled
matter.
Ass’n,
ston
Digest
supra,
v. Reader’s
U.S.
S.Ct.
Proxmire,
450;
supra,
Hutchinson v.
L.Ed.2d
However,
L.Ed.2d 411.
in contradis
view,
tinction from the federal
we do not deem it unfair to
reputational
favor free
over the
interests of an individu
al
voluntarily
who has
and knowingly engaged in conduct that
*16
position
one in his
reasonably
should
know
implicate
would
a
legitimate
interest,
public
engendering
possibility
the real
public
scrutiny.
attention and
While
an
such
individual has not
sought publicity, by willingly
knowingly engaging
and
in con
exposes
attention,
duct that
him the risk of
he has relin
quished part
reputation
public eye.
of his
to the
Curtis
Cf.
Butts,
Publishing
supra,
v.Co.
388 U.S. (“The
...,
In this
public controversy
a
and hence
spotlight
into the
is
himself
Nevertheless, he
public figure.
has
not a First Amendment
presumably knowingly,
exposure
risked
on a
voluntarily, and
subject-matter
legitimate
concern. Plaintiff founded
FSB,
its President and Director for almost
and served as
undoubtedly thoroughly
He
and
twenty years.
was therefore
governmental
all of
intimately conversant with
and
industry.
banking
attend the
Plaintiff would
interests that
regularly
are
examined and audited.
know course that banks
impli-
Moreover,
fraught
the transaction itself was
with
FSB,
large
Plaintiff
a
loan from
secured
a
cations.
received
shortly
his retirement from
mortgage;
this occurred
after
positions.
people in the
and com-
Most
business
official bank
expect
large
loan
a bank
world would
between
mercial
special
president
founder and former
would attract
its
(special
scrutiny and examination. See
17:9A-72
N.J.S.A.
officers).
guidelines for
to bank directors or executive
loans
Plaintiff,
sophisticated
businessperson, is also
banker and
possibility
special favors
such
presumed to know that the
situation,
public, financial ana-
general
which
concerns
scrutiny and could
lysts,
government,
would invite close
accompanying
risk of inaccu-
media attention with
attract
Thus,
investigation
press’s
into
rate or false statements.
aberrational, and
wholly unexpected
is
such a matter
indeed,
encouraged.
Jersey
v. New
Month-
is to be
Maressa
Cf.
newsperson’s right to
ly, supra,
(recognizing
The standard courts below is inappropriate in the of a context defamation action that focuses published legitimate upon involving matters of concern knowledgeable exposes individual who himself to risk of possible publicity. uniqueness, variability complexity suggest of the tort exacting of defamation the need a more problem liability. negligence standard of One inherent great engendered uncertainty application. standard is the in its concept negligence the common applied law def- “[I]f amation, publisher’s protection the extent constitutional depend unfettered, jury’s relatively post will on a ex facto conduct, appraisal publisher of his way and since the has no knowing large zone, jury prohibited how will make the he Anderson, has no choice but to steer wide it.” “Libel Self-Censorship,” Press Law Texas Review 460-61 (1975); Tribe, Law, see also L. American Constitutional (1978)(unpredictable 12-13 at 645 jury application results of § negligence press self-censorship). standard will cause More critically, jury flexibility negligence inherent in the standard dangerous jurors represent majori- “is inasmuch as likely are unpopular speakers tarian attitudes toward and ideas.” L. Tribe, supra, Hence, standard, 12-13 at 645. negligence § provides which flexibility torts, needed physical in the area of may serve of censorship as tool the context of free and defamation. jurisdictions,
Courts from other similarly concerned negligence vagueness standard’s unpredictable jury appli- cations self-censorship would cause the the New York Times designed abrogate, decision was higher have also embraced a burden negligence private person plaintiffs than for some in- legitimate volved a matter of Gay concern. See Williams, (D.Alaska 1979) F.Supp. (based upon pre-
277 decisions); v. Colorado Walker court Alaska state Gertz Sun, Inc., 86, (1975), cert. 450 Springs Colo. 188 538 P.2d Walker, 423 1025, v. U.S. 96 nom. Woestendiek denied sub (1975); Chapadeau v. United Observ 469, 399 46 L.Ed.2d S.Ct. Inc., 61, er-Dispatch, 38 N.Y.2d 341 N.E.2d 196, N.Y.S.2d 379 Inc., Press, Mich.App. Free (1975); Peisner Detroit 82 569 modified, 153, (Mich.Ct.App.1978), aff'd and 421 N. W. 266 2d 693 Heating Air 125, (1984); Mich. N.W. AAFCO 364 2d 600 Publications, Inc., 162 Ind. Conditioning Co. v. Northwest denied, cert. 671, (Ind.Ct.App.1975), 424 App. 580 N.E.2d 1112, (1976). 913, Jersey’s 96 S.Ct. 47 L.Ed.2d New U.S. for free likewise advis long-standing expressed concern negligence context of against standard es the use this case. negligence jurisdictions
Admittedly, many
have embraced
private person plaintiffs. E.g., Foster v. Laredo
standard for
Inc.,
denied,
cert.
(Tex.1976),
Newspapers,
S. W. 2d
(1977);
McCall v.
1160, 51
97 L.Ed.
2d 573
U.S.
Co.,
For the same reasons do not proof expressed by gross standard of notions of intermediate See, Chapadeau negligence e.g., or recklessness. v. United Inc., Observer-Dispatch, supra, 38 N. Y.2d 379 N.Y.S.2d negligence determinations, 341 N.E.2d Gross like 569. negligence, relatively unpredictable jury evaluations involve contexts, assessments. other intermediate burden ex pressed gross negligence may terms such as serve salu *19 mundane, tary purpose. protect a can Such burden common place behavior, ordinary though and forms of human even carelessness, encompassing simple penalizing while actions in Carus, volving egregious Mahoney more misconduct. E.g., v. (“fireman’s (1986) rule” N.J. does not bar suit for misconduct); Jeffries, willful and wanton Foldi N.J. 533 (1983) (parental immunity parent inapplicable willfully if and child). wantonly supervise failed But these situations jury dealing average is human canvassing with behavior and ordinary conduct that is within everyday well the norm of defamation, experience. however, In the context of it is hot likely average persons easily recognize that vague would speech and negligently subtle difference between uttered recklessly. that uttered critically
Nor do see measurably simpli we this difficult task testimony. fied expert Expert testimony resort to would be appropriate in those cases litigation defamation when the focus es beyond experience on issues comprehension average person. Inc., Today, See Kohn v. West Hawaii 584, -, (1982)(“The Hawaii P.2d determination of expert required whether private figure evidence is in a def basis, case-by-case amation action should be on a depend made ing on the nature of issue be decided and the evidence issue.”) actually cases, adduced on that expert such testimo ny regarding journalistic practices may properly and customs jury, inform a proof even when the of burden is actual malice. experts problems But jury cannot solve the variance and possible censorship posed by the use of standards such as negligence. Consequently, installing a negligence gross press regime in defamation would burden the gross negligence vagueness problems unpredictability as comparable with standard, any plaintiffs negligence without benefit with the indeterminably higher proof. to meet an burden forced plaintiffs attempt to additionally pro- fetters a standard thus any of free reputation without real enhancement tect his press. values or benefit to person that when with sufficient
We hold knowledge person experience, understanding and enters into a personal his affairs in a manner that al or conducts transaction reasonably expect implicates a position legit would one his publicity, defam imate interest with an attendant risk upon atory speech that focuses interest will not be published has with actual malice. We actionable unless it been common-law, Stores, principles Dairy holding rest on see our 125; Co., Publishing supra, 104 N.J. there Inc. v. Sentinel fore, similarly we need not determine whether the result plaintiff, required Accordingly, under constitution. the state large from the he founded and led for who loan bank obtained prove acted actual twenty years, must defendants with *20 defamatory the articles. publishing malice in
V. relating to to the claims as certain errors Defendants raise plaintiff. We now address those in the event damages awarded the matter.4 there is a retrial of addressing anticipating possibility that of a and issues would 4In the retrial event, summary availability we should to the of be relevant in that also advert Stores,
judgment light Dairy proceedings in Inc. Sentinel in of the discussion light Co., timely the Publishing supra, 133. This reference is N.J. at matter, express legal principles govern the but we do not will a retrial of that summary judgment, any appropriateness shall of which views as to the depend on state the record. course the A. $200,000
Defendants
contend that
general
Sisler’s
damages
recovery
injury
reputation
to his
violates the tenets of Gertz
Welch, Inc., supra,
v. Robert
323,
S.Ct.
2997,
789,
L.Ed. 2d
and thus should be reversed
aas matter of law.
Gertz,
Supreme
the
Court announced restrictions
on the
damages
that could
by
states,
be awarded
in order
ensure that “state
remedies for
falsehood reach no
farther
necessary
protect
than is
legitimate
interest
Id.
involved.”
at
S.Ct.
at
reputation
community,
and mental
personal humiliation,
anguish
suffering.
juries
Of course
must be limited by appropriate
instructions and all awards must be
evidence concern-
supported by competent
ing
injury, although
assigns
there need be no evidence which
an actual
injry.
dollar value to the
at
at
[Id.
349-50,
at
L.Ed.2d
811]
argue
plaintiff
Defendants
competent
adduced no
evidence
trial of
injury”
“actual
reputation,
to his
and thus
$200,000
injury
award for
reputation was,
effect,
to his
presumed
award of
damages and a violation of Gertz.6
472 U.S. at
Builders, Inc.,
759-60,
supra,
Inc. v. Greenmoss
5Dun and Bradstreet
since clarified these restrictions as
Injury reputation, personal inju even more so than anguish, ry expert or mental which are both amenable to testimony, type exact measurement. The defies of direct testi mony lacking traditionally produce; here has been hard to fact, difficulty engendered “presumed it was this damages” doctrine. Id. at See L.Ed.2d J., However, (White, dissenting). inherently at 825 amor quantification damages potentially phous juries of libel enables vary damages popularity awards in accordance with unpopularity speaker expressed. or the Ander view See Proof,” son, Compensation, “Reputation, 25 William & (1984). Accordingly, plaintiff Mary L.Rev. 747 should offer proof reputation injured. concrete that his has One some been proof existing relationship seriously form of is that has been disrupted, reflecting reputation may the idea that a be valued in relationships Testimony of third terms of with others. Ibid. prove parties reputation as to a diminished will also suffice to injury.” plaintiffs testimony alone “actual Awards based on unacceptable. or on “inferred” are evidence, Because of the elusive nature of such courts must jury damages weigh carefully type scrutinize awards reputation-injury presented. Courts evidence substance showings reviewing jury awards on lesser evidential based reducing scrupulous, more and less hesitant about should be practice conform with the evidence. While this verdicts to awards, might plaintiffs still retain the satisfaction reduce libel publicly by jury verdict. having reputation their vindicated standard, plaintiff Applying find in this case this we perma relationship was presented evidence that his with Guida Moreover, nently impaired by articles. the Courier-News enough justify an award jury persuasive found this evidence from special damages. jury entitled to conclude repu general injury to his this evidence that suffered tation, transac that manifested in the isolated over and above special damages. tions for which it awarded the
B. $850,000 special damages for the lost Plaintiff recovered Apt-to- standardbred horses at the three opportunity to stand as a that this should be overturned Defendants assert Acres. plaintiff, as of this claim is that gravamen The matter of law. corporation, cannot recover Apt-to-Acres a shareholder Additionally, by corporation. sustained damages that were corporate Apt-to-Acres as a court dismissed since the trial special not recover dam- corporation itself could plaintiff, damages suit, special claims for and therefore all ages in this dis- stand the horses must be opportunity lost to from the missed.7 granted Appellate Division the trial court nor the
Neither
damages claims. The
special
all
motion to dismiss
defendants’
plaintiff
could
defendants
agreed
court
with the
trial
corporation,
ruled
by his
but
recover
for losses suffered
pertaining
corporate
losses
present proofs
that Sisler could
refusing
In
defend-
special damages.
of his own
as evidence
that,
explained
trial court
judgment n.o.v. the
ants’ motion for
lost,
corporation
corporation
the lost
[sic]
recover what the
he could not
[w]hile
shareholder,
damage
the individual
who was
100%
was some evidence
uncertainty
might
corporation.
as to
While there
be basis
stockholder of a
accompanying
because of several
confusion exist
contention and its
7This
stages
litigation.
by
parties
of this
At
at the initial
tactical maneuvers
both
trial,
Apt-to-Acres
corporate
parties
as
consented to the dismissal
both
by
corporation
ground
been libeled
plaintiff
itself had not
on the
that the
co-plaintiff
corporation as a
had named the
Courier-News' articles. Plaintiff
plaintiff
only
the event that
the libel cause of action in
to insure the survival of
died,
that the death of
the suit was instituted indicated
since the law at the time
subsequent
plaintiff
When a
the libel cause of action.
a libel
terminates
Jersey
New
law a libel action
decision held that under
Federal District Court
dismissing
objection
plaintiff,
no
of the
Sisler had
would survive the death
Time,
F.Supp.
Apt-to-Acres
co-plaintiff.
See MacDonald
a as
(1984)
News, Inc.,
(D.N.J.1983);
Although
supports
case law
defendants’ assertion that a
shareholder,
stockholder,
even
cannot recover under a
100%
corporation,
cause of action for defamation that lies with the
Co.,
Publishing
see McBride v.
Even recovery. entitled to plaintiff would still be damages, Apt-to-Acres, corporate plaintiff, agreed that the parties had articles. But if the by the Courier-News had not been defamed as defendants con by Apt-to-Acres, damages were sustained tend, must also be viewed as the libeled corporation then imply, article did at least The last Courier-News party. Guida, Apt-to-Acres financed under-collateralized was alleged Apt-to-Acres’ financial spectre It loans. negotiations to terminate instability that caused Guida dealing from with the articles deterred Guida the horses. Since Apt-to-Acres suffered the libel and sus Apt-to-Acres, arguably plaintiff and could be reinstated as tained $850,000 damages. 2nd special See Restatement awarded 561; System v. Training Advanced Caswell Torts see also § (Minn.1984)(“to Co., recover 2d Equipment N.W. libel, defendant’s written state corporation must show that credit, property, or directly to affect the business ments tended However, disposi of our corporate plaintiff”). view definitively on this appeal, unnecessary it is to rule tion of the claim.
C. trial, he Although plaintiff a favorable verdict at received claiming that trial errors cross-appealed here and below several However, we jury because reduced the amount of the award.8 (a) 8SpecificalIy, plaintiff of Sisler’s recol- contends error in: the exclusion concerning standing certain horses with Louis Guida lection of conversations cause; (c) farm; (b) proximate judge’s jury on the trial instructions at Sisler’s humiliation; (d) anguish and the failure dismissal of his claim for mental (e) jury; punitive to the the dismissal his claim for submit parent corporation, Company, condi- as a co-defendant. Plaintiff Gannett guarantee cross-appeal of the that a retrial on one or more tioned his on the original Appellate Division ruled that his award. The issues would not disturb compensatory effectively cross-appeal withdrawn his claims Sisler had prejudice limiting request his damages by his new trial to one that would similarly unnecessary jury this issue. It is to resolve initial award. matter for determination under a today remand the different proof, plaintiff may the issues raised not recur burden of may evidentiary light cast in a different at retrial. be Resolu- is thus plaintiffs claims obviated. tion of
VI. plaintiff It is our conclusion that must def- establish against by establishing defendants actual malice in the amation reason, publication offending jury of the articles. For that awarding damages judgment verdict must be set aside and the below reversed. The matter is remanded for retrial in accord- opinion. ance with this
GARIBALDI, J., concurring. primary appropriate The issue in this case is the standard of impose upon brought defendant in care to media a libel action concerning by private individual for a statement majority imposes matter. The the standard of actual Sullivan, malice set forth in New York Times v. 376 (1964). 710, 11 L.Ed.2d 686 84 disagree. majority’s position
I extends the use of the strict New York Times standard too far and strikes an improp- private person’s reputation er between a interest in his balance press’s I and the first amendment freedoms. too am committed uninhibited, robust, However, press. prac- to an and free New York Times application of the standard tical effect nearly prevent recovering has from all been applied. defamation cases in which the standard has Ea- been ton, Through “The American Law of Defamation Gertz v. Primer,” Welch, Beyond: Analytical An Robert Inc. and (1975); Tribe, American Constitution- Va.L.Rev. L. Law, (1978). Indeed, al Supreme Court con- 638-640 the U.S. *25 additional burdens on place plaintiffs must tinues to who York Thus, applying New Times prove actual malice.1 practical person affords an individual no private to a standard reputation. way protect his the New York Times standard is not at in cases where
Even
imposed
issue,
Supreme Court has
substantial constitu-
the U.S.
plaintiff
private figure
a
can recover
restrictions before
tional
Welch,
v. Robert
Gertz
actions.
damages
in defamation
(1974),
Inc.,
323,
2997,
94 S.Ct.
order
for a
the New York Times
must meet
punitive
he or she
Philadelphia Newspapers
Recently
malice standard.2
actual
485,
States, Inc.,
Corp.
United
466 U.S.
In Bose
v. Consumers Union
1949,
(1984),
appellate
S.Ct.
Given tions, private-figure plaintiffs I should be allowed believe they if show that the conduct of the media defend- recover ant, against prudent measured the conduct of a reasonable and circumstances, figure acting negligent. under similar was media preserve right would an individual’s to recover Such a standard reputation by publication for loss to his of a actual statement, protect right it would still false while press. to a free and uninhibited
I
Today
Jersey
the Court takes New
libel law in a new di-
Supreme
contrary
rection that
to the decisions of the U.S.
Despite
acknowledgement
majority
Court and the
of states.
its
private figure, the
he
that Sisler is a
Court holds that because
knowingly engaged in
one in
voluntarily
“has
conduct that
legit-
position
reasonably
implicate
his
should
know would
interest,
engendering
possibility
the real
imate
scrutiny,”
to recover actual
attention and
he will be allowed
272.
Ante
malice.4
damages only if he establishes actual
Inc.,
Newspapers,
recognized
plaintiffs
Philadelphia
3In
the Court also
weightier
Pennsylvania’s
media
burden
because of
shield law which allows
course,
divulge
Jersey
employees
their sources. Of
New
likewise
to refuse to
2A:84A-21;
law,
Boiardo,
(1980);
strong
State
The a man to of protection reputation wrongful hurt reflects no more than our invasion basic concept being dignity of human at the root of any essential and worth every concept —a decent of ordered system liberty. The have not citizens of ... First and Fourteenth Amendments private stripped injuries of inflicted them careless liars. The all means redress for upon bring be the falsehood can often is, sure, destruction that defamatory beyond though action for law to redeem. Yet it is, the capacity imperfect gives is or redress to a man the vindication the law hope only whose has been dishonored. falsely reputation the effect for defamation serves an Moreover, important liability preventive rights far transcend For the and values of private personality public purpose. taught taught anything, if us mere interests. the 1950’s Surely they personal degrade the lie can us that infect and atmosphere easy poisonous the whose society. essence, majority adopting repudiated the doctrine the 1811, 29 Metromedia, of Rosenbloom v. 403 U.S. 91 S.Ct. (1971). Supreme There extended the L.Ed.2d 296 the Court actions, of a regardless York standard all New Times libel status, plaintiff’s long as relates so statement later, general years “public to matters of interest.” Three Court, requirement realizing of actual it had extended far, too itself in malice reversed Gertz.
289 represents Gertz decision in a sounder Supreme Court’s competing press interests of accommodation between private persons lack “access to the and the individual. Because ... to counteract false channels of effective communication they “relinquished part have no statements” because by “thrust[ing] to the fore good themselves [their] name[s]” particular front of controversies order to influence the involved,” of the issues the Court held resolution greater protection persons are entitled to than ones. Gertz, 344-45, S.Ct. 41 L.Ed.2d at U.S. 808.5 Gertz, controlling determining factor stan
Since to be in a case is the status of the dard of care used libel See, public figure private figure. or a individual —whether Time, Firestone, v. e.g., Inc. U.S. S.Ct. (1976) (wife wealthy Palm Beach socialite
L.Ed.2d public figure much-publicized was not a involved in a divorce her interest simply affairs were of because entitled to the actual malice hence the media defendant Proxmire, standard); Hutchinson *28 (1979) controversy into (public which 61 L.Ed.2d pre-exist may personality or her must the plaintiff thrust his publication. charged with defamation can- “Those they very position persons when are criticized. are in a different Private public injury, They rigors as life: assumed the risk not chosen the have opportunities criticism are slimmer. Justice And their to rebut it were. testing marketplace he was the best when said the Harlan had them mind private the ground does not for truth it functions.” It function for "where him, listening person, to and Justice Harlan no interested in because one is unchallengeable against dangers For these rea "the untruth.” warned got Supreme to to have the balance interests sons Court seems me private allow right the states could when decided in about it Gertz any except liability plaintiffs without fault: recover libel on standard is, negligent been publisher, be at least have that must shown publishing a falsehood. Lewis, to Return to ‘The York v. Sullivan Reconsidered: Time "New Times Amendment,”’ Rev., 603, Meaning of the First 83 Col. Law Central (1983). conduct, not, by by making their own create their own defense public figure.” claimant Id. 99 S.Ct. 431); Ass’n, Inc., Digest L.Ed.2d at v. Reader’s Wolston (1979)(merely L.Ed.2d 450 because involving private events individual attract and media private public figure. attention does not make that individual a A libel defendant must show more than mere newsworthiness justify application demanding burden of the New York Times.). generally recognized fairly high
Courts that “a threshold of public activity evidently necessary finding person for a that a voluntarily plunged public controversy.” Tribe, has into L. (1978). Here, however, American Constitutional Law 645 majority public figure though labels the as a even it simultaneously acknowledges special that he: has not attained prominence in society; the affairs of has not thrust himself to particular public the forefront of controversies in order to involved; influence the resolution of the issues does not com- independent interest; mand a substantial amount of has pervasive notoriety achieved fame or even in the Franklin area; and, Township finally, sought has not attention fact, controversy. majority particular- states that retirement, ly “plaintiff since his publicity has avoided concentrating on his business affairs.” Ante at 269. In short, despite label, majority’s facile Sisler has none of the public figure” characteristics of “a under federal constitutional analysis prove and hence under federal law would not have to damages. actual malice in order to actual recover burden, then What has Sisler done to deserve this extra necessity establishing the New York Times actual malice standard, in order reputa- to recover for actual to his *29 tion? I nothing. submit that he has done I find little merit to majority’s conduct, perfectly contention that Sisler’s legal borrowing money transaction of from a in which he bank
291 officer,6 import that “relin- of such Sisler a former public eye.” to the re- quished part reputation Sisler of his Thus, I that it private person. submit is not what a mains merely statement has done but because Sisler public concern forces majority that concerns matter mere stricter standard. The fact that him to adhere to the him, activities does not make press is attracted to Sisler’s As the Court Gertz him, public figure. should not make concluded, every of the New Times test” to the extension York legitimate state abridge interest “would this item of reputation] person’s degree to a [protection of interest Welch, 346, v. Robert U.S. Gertz unacceptable.” we find 3010, 41 L.Ed.2d at 809. S.Ct. It af majority’s The decision has broad ramifications. will directors, as well as former fect all former bank officials high-pro regulated industries or officers and directors other companies. follow corporations, dealing with their file semi-public majority’s conception of a ing come within high profile involv with a or figure: attorneys who take cases Welch, causes, see v. Robert U.S. Gertz ing unpopular 748; S.Ct. 41 L.Ed.2d individuals who receive awards private organizations, see government or from the well-known Proxmire, 99 S.Ct. L.Ed. Hutchinson v. U.S. 411; people simply seek to defend themselves as well as who 2d Time, Firestone, lawsuits, see Inc. 958, 47 L.Ed. 2d 154. inadequately protecting a individual’s
Aside from notion of a are other serious flaws with the reputation, there of a undefined “semi-public figure.” The introduction new great- only in already into field can result variable confused unpredictability will uncertainty area the law. This er in this standard, differ- compounded by the fact that this is a new be guidelines permit banks to loans its forth make 6N.J.S.A.17:9A-72sets imposes on loans statute no restrictions directors and officers. The current to its directors officers. banks former *30 from private/public dichotomy. Moreover, ent the federal this majority creation of the guidelines new sets forth no defined to private person determine whether a will be deemed a “semi- public” person. only process It concludes that the develop will case-by-case on majority may a basis. While the know a “semi-publicfigure” her, when it sees him or I am not sure that legal profession either the media or the will. Where we can generally rules, discern applicable I think they should be preferred to the majority’s approach, subjects which both the press unpredictable and the to second-guessing of the judiciary.
II question The liability remains what standard of apply should defamatory to a private statement a relating about individual a matter of concern in protect order to best the freedom press good of the and the name of majority the citizen. The states that have considered the adopted issue after Gertz have some ordinary negligence variant of the standard. See Restate- (Second) 580B, ment appendix reporter’s Torts *31 by of reference media defendant’s standard conduct define the prudent in reasonably media defendant the conduct of the to community similar community or in a similar under circum- the standard, to defendants will be held Under this media stances. skill, experience normally exercised knowledge, and the profession. members of that medium,
Specifically, I “the the size and would consider broadcaster, publisher and or its resources location of Tribe, technological capabilities, pressures.” deadline L. and (1978); Anderson, “Libel Law American Constitutional (1975). Self-Censorship,” 53 Tex.L.Rev. It would be journalistic practices large of a urban impose to unfair Among the newspaper paper vice-versa. weekly on a small thoroughness key time. The of check factors would be publishing journalist would make before the state- a reasonable was matter may depend on whether the communication a ment useful, publication or topical requiring prompt to be of news ample. opportunity investigate were one which time and to (c) failing negligently acts to ascertain them. (Second) (1976). § Restatement Torts 580B of subject a 9The court held that is not from publisher liability Gertz negligence a based on a the content of which does not warn publication editor or broadcaster of its In such reasonably prudent defamatory potential. case, the New York would to be established in order to Times standard have damages. negligent Thus, receive the mere error careless compensatory mistatement of fact that on its face does not will not result appear for media defendant. liability situation, require may due care a more thorough In the latter investigation. (Second) Restatement Torts 580B.10 §
I am aware of concerns of who critics fear that imposition reasonably-prudent-media-defendant such stan- only dard would papers favor orthodox and create unwel- pressure However, uniformity. come I believe that these exaggerated. greatly Many dangers fears are are sub- stantially when judged by alleviated defendant standards resources, publishers comparable pressures, deadline space limitations, technological capabilities. Moreover, pressures similar apply negligence involving cases new and cases, unorthodox legal medical treatment or theories. In those here, safely as juries we can entrust decisions whose mem- weigh bers will depending be able to all of the factors on the circumstances of the case.
III majority that use fears of a lesser standard than actual chilling malice upon would have a effect freedom press. *32 contrary, On the I reasonably-prudent-media-de- believe that a little, any, practical fendant standard have would if effect on functioning responsible journalism. the of judicial press that the muzzle feared before and after fortunately First, New York has Times not materialized. the limitations, particularly specter Gertz the removal of presumed punitive damages and in the absence of the New standard, York Times significant powerful “eliminates and self-censorship present motives for are otherwise in the By doing, traditional libel action. so the Court leaves what prove should adequate breathing space to be sufficient and requiring conduct, professional 10Asin other the cases evaluation of the relevant, practices controlling. customs and the within trade would be but not (Second) 530(b) (1977). g Normally, expert § Restatement Torts comment of However, testimony professional is introduced to establish customs. media present expert profession defendants would to could not have an but establish journalistic practices through testimony al the of their own staff. Welch, at press.” Gertz Robert vigorous v. J., (Blackmun, concurring.) 2d 41 L.Ed. at 813 Second, experts in the of defamation law area believe applied today, as the rule it is here even with New York Times self-censorship effect of the inherent is still a because there Lewis, litigation. “New York Times of defamation See costs Return to ‘The Central Mean- Time to Sullivan Reconsidered: ” Amendment,’ (1983). Pre- 83 Col.R.Rev. ing the First world, freest in the amount cisely press the the because our grow along increasing litigation to with continues libel magnitude It of the financial judgments costs. is the to any factor that makes libel a threat burden more than other Anderson, Self-Censorship,” “Libel Press press today. the (1975). There little probably will be 53 Tex.L.Rev. defending press action the costs the libel difference negligence as contrasted with the actual under the standard standards, only press but test.11 both malice Under has to devote substantial resources the defamed individual also time, energy in a action. It is the costs and emotional libel ignores. majority defamed individual that Furthermore, that a motion for many agree commentators negli- summary judgment no less available under a should be gence the New York Times standard. standard than under (1975). Anderson, explained As supra, 53 Tex.L.Rev. Professor Tribe: weight privilege no to defame which would accord absolute
Short preserving most strat- efficacious interest reputation, society’s pervasive negligence, of a libel costs is actual malice 11Whether standard sides Thus, are both and defendants tremendous. to both the action plaintiffs finding to accommodate concerns an interest better way have *33 agree injured who believe with these commentators and the individual. I press good her defamed is to restore his or interest paramount person and the elimination of end, punitive To that I believe that presumed name. Legislature, in consulta a serves salutary purpose. Additionally, developing law, work toward this area of the should tion with in experts full-fledged libel action. to the traditional feasible alternatives egy judgment to reduce be liberal use of self-censorship may summary proce- long litigation. in dures defamation so as to avoid actions, There costly judgment no reason Gertz than under should be less available under summary New York Times, at least after the Gertz substance of the “fault” standard has justifiable Gertz become Thus seems in broad outline as an apparent. accom- making aggrieved modation it easier individuals to obtain redress of injuries significantly affecting without the level of reputational self-censorship American (1978). Constitutional Law 642-43 L. Tribe, by press. already Given the substantial constitutional restrictions im- posed private-figure on a plaintiff suit, recover a I libel do perceive any not intolerable burden to freedom of press impose duty upon of reasonable care those who world, exercise today’s those freedoms. In the media can have impact a considerable on the life and livelihoodof an individual. Neither the negligent intentional lie nor the error substantially society’s advances interest in a free press. and uninhibited reporters responsible Thus, Most are and careful. requiring the news media to use gathering due care in reporting particular areas where there is danger damaging reputation individual’s prove should not an undue burden on the press, particularly negligence when such is to be determined the conduct of the reasonably prudent publisher or broadcaster in the community True, or under similar circumstances. under greater this standard care would have to be exercised with respect to private-figure plaintiffs, justifiable but this is as a proper balance between press the interests of the and the interests of a citizen.
IV Applying a reasonably prudent media defendant standard to case, this I would find that the has established that the statement presented was false and that it danger substantial reputation. admission, to his By appears defendants’ own it negligent, that their conduct was accordance with generally acceptable journalistic practices. evidence, No how- ever, specifically prove introduced to that the defendants’ acts were expected less than those responsible journalists. *34 Therefore, right should have be tried under the defendants According- reasonably-prudent-media-defendant standard. majority’s in the decision remand the ly, I would concur retrial, majority, unlike the I would hold but matter against the defendants may defamation establish negligent, establishing conduct as mea- simply that their reasonably prudent figure of a media by the conduct sured acting similar circumstances.12 under
GARIBALDI, J., concurring in the result. WILENTZ, For Justice reversal and remandment —Chief CLIFFORD, HANDLER, POLLOCK, O’HERN, GARI- Justices STEIN—7. BALDI and
For affirmance —None. HEIN,
IN THE MATTER OF EUGENE D.
AN
LAW.
ATTORNEY AT
February
Argued
1986.
1985 Decided November
remand,
anguish
puni
12On
Sisler’s claims for mental
and humiliation
tive
would also have to be addressed.
notes
§
(1976);
Co.,
Sisler v.
Super,
Courier-News
199N.J.
314-15
(App.Div.1985). Four
adopted
higher
states have
a
standard
negligence.7
than
adopted
Restatement
likewise has
a
negligence standard for the defendant
private
who defames a
person, regardless of whether
the matter concerns a
or
private issue.8
states, Alaska, Colorado,
Indiana,
Michigan
7Four
applied
have
private persons.
gross
actual malice
adopted
negli
test to
New York has
gence
Chapadeau
Inc.,
Observer-Dispatch,
standard.
v. Utica
38 N.Y.2d
(1975);
Inc.,
379 N.Y.S.2d
Newsday,