Kotlikoff v. The Community News

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtCLIFFORD
Citation89 N.J. 62,444 A.2d 1086
Decision Date27 April 1982
Parties, 8 Media L. Rep. 1549 Louis J. KOTLIKOFF, Plaintiff-Respondent, v. THE COMMUNITY NEWS, the Suburban Newspaper Group, Louis J. Recchino, Albert Mattern, James R. Rodi and Robert Leather, jointly, severally or in the alternative, Defendants-Appellants.

Page 62

89 N.J. 62
444 A.2d 1086, 8 Media L. Rep. 1549
Louis J. KOTLIKOFF, Plaintiff-Respondent,
v.
THE COMMUNITY NEWS, the Suburban Newspaper Group, Louis J.
Recchino, Albert Mattern, James R. Rodi and Robert
Leather, jointly, severally or in the
alternative, Defendants-Appellants.
Supreme Court of New Jersey.
Argued Nov. 16, 1981.
Decided April 27, 1982.

[444 A.2d 1087]

Page 64

Robert T. Lehman, Haddonfield, for defendants-appellants The Community News, et al., (Archer, Greiner & Read, Haddonfield, attys.).

William H. Buckman, Voorhees, for defendant-appellant Robert Leather.

Jeffrey M. Keiser, Camden, for plaintiff-respondent (Ballen, Keiser & Denker, Camden, attys.).

The opinion of the Court was delivered by

CLIFFORD, Justice.

This case addresses an aspect of the constitutional protection accorded expression of opinion about a public figure. Our consideration of the subject comes in the wake of recent Supreme Court decisions dealing with defamation. Plaintiff claims that allegations of a "cover up" contained in defendant Leather's letter to the editor of a local newspaper were defamatory. The trial court, ruling that the remarks were privileged as fair comment, granted defendants' motion for summary judgment.

Page 65

The Appellate Division reversed and remanded. We reverse and reinstate the trial court judgments in favor of defendants.

Although we conclude that under Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the common law privilege of fair comment is no longer relevant, we hold that the opinions set forth in defendant's letter are protected by the First Amendment. Inasmuch as the statements contained in the letter were not defamatory, we do not reach the question of whether they were published with the actual malice required to sustain an action for defamation against a public official. See Lawrence v. Bauer, --- N.J. ---, ---, ---A.2d ---- (1982).

I

The Community News is a small, local newspaper published weekly and distributed generally by The Community News, Inc. in Pennsauken, Merchantville, and Delair, New Jersey. In its March 27, 1975 edition the Community News published a "letter to the editor" written by defendant Robert Leather, a resident of Pennsauken, criticizing the official conduct of plaintiff, Louis J. Kotlikoff, then the Mayor of Pennsauken. In the letter, which was published under the heading "A Conspiracy?", Leather suggested that Mayor Kotlikoff and Tax Collector Harold Roesler, who had repeatedly refused to reveal the names of property owners delinquent in their payment of local property taxes, might be "engaged in a huge coverup." The letter expressed concern that the decline in property tax collections would cause an increase in the tax rate, and criticized Kotlikoff and Roesler for withholding from the public and the Township Committee the names of delinquent taxpayers. Leather's letter concluded by stating that the circumstances surrounding Roesler's refusal to make public records available "add[ed] to the belief that there is a conspiracy * * *."

Shortly thereafter Kotlikoff filed this suit alleging that the newspaper's publication of the letter was libelous, defamatory,

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and damaging to his reputation. He named as defendants The Community News; its publisher, the Suburban Newspaper Group; its general manager, Louis J. Recchino; its executive editor, Albert Mattern; its advertising director, James R. [444 A.2d 1088] Rodi (hereinafter referred to collectively as the newspaper defendants); and the writer of the allegedly defamatory letter, Robert Leather. 1

The newspaper defendants filed two motions for summary judgment. In the first motion they claimed that the complaint and affidavits of plaintiff, a public official, had failed to allege sufficient facts to permit the conclusion that the newspaper had published the letter with actual malice. After the court denied that motion, the newspaper defendants filed a second summary judgment motion on the ground that the newspaper's publication of the letter to the editor was not libelous or defamatory as a matter of law. The trial court granted that motion, holding that the letter was not reasonably susceptible of a defamatory interpretation inasmuch as it expressed simply an opinion based upon disclosed facts. Consistent with that determination the trial court thereafter entered summary judgment for Leather.

Plaintiff appealed from the summary judgments against him, and the newspaper defendants cross-appealed the denial of their motion for summary judgment on the issue of actual malice. The Appellate Division reversed the summary judgments in favor of defendants and remanded the matter for further proceedings. It held that the letter could reasonably be interpreted as accusing plaintiff of having committed criminal conspiracy; hence a jury should have decided whether it was in fact defamatory. In a supplemental opinion the Appellate Division held that the trial court had correctly determined that the issue of actual malice involved questions of fact.

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We granted the defendants' petitions for certification, 87 N.J. 428, 434 A.2d 1099 (1981), and 88 N.J. 500, 443 A.2d 713 (1981), and now reverse.

II

At the heart of every action for libel or defamation is the threshold issue of whether the language used is reasonably susceptible of a defamatory meaning. It is well established that that question is one of law to be resolved by the court. Herrmann v. Newark Morning Ledger Co., 48 N.J.Super. 420, 429-30, 138 A.2d 61 (App.Div.1958). Likewise, the critical issue in this case--whether the letter in question amounted to a statement of fact or an expression of opinion--is a question of law for the court. Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 366 N.E.2d 1299, 1306, 397 N.Y.S.2d 943, 950, cert. den., 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). As a preliminary matter we therefore emphasize that the summary judgment procedure is particularly well suited to this sensitive area of First Amendment Law.

Recent developments in the law of libel and defamation have been directed towards preventing people from being discouraged in the full and free exercise of their First Amendment rights with respect to the conduct of their government. See Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C.Cir.1966), cert. den., 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). The threat of prolonged and expensive litigation has a real potential for chilling journalistic criticism and comment upon public figures and public affairs. Furthermore, the prospect of delay attendant upon any defamation trial, no matter how expeditiously handled, may inhibit the full and free exercise of constitutionally-protected activities. See id.

The summary judgment device, as employed by the trial court here in the pre-discovery stage, winnows out nonactionable claims, avoids the expenditure of unnecessary legal fees, and discourages frivolous suits. We therefore encourage trial courts to give particularly careful consideration to identifying appropriate

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cases for summary judgment disposition in this area of the law. See Novack v. City Service Oil Co., 149 N.J.Super. 542, 550, 374 A.2d 89 (Law Div. [444 A.2d 1089] 1977), aff'd, 159 N.J.Super. 400, 388 A.2d 264 (App.Div.1978).
III

Traditionally, one could be found liable for defamation if one published an opinion that harmed another's reputation. However, expressions of opinion were privileged if they constituted "fair comment" on a matter of public concern. Restatement (Second) of Torts § 566, comment a (1977). This Court has articulated the following definition of the fair comment privilege:

In a word, "fair comment" (a) must be based on facts truly stated, and (b) must not contain imputations of corrupt or dishonourable motives on the person whose conduct or work is criticized, save in so far as such...

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    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 25, 2019
    ...publication. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 189 (3d Cir. 1998) (citing Kotlikoff v. Community News, 89 N.J. 62, 444 A.2d 1086, 1088 n. 1 (N.J. 1982)). The parties here do not really assert that Del Rosso defamed Demetro when he complained to the Woodbridge PD.......
  • In re Quality Botanical Ingredients, Inc., Bankruptcy No. 99-5800
    • United States
    • U.S. Bankruptcy Court — District of New Jersey
    • June 16, 2000
    ...The determination of whether a statement is defamatory is a question of law determined by the court. Kotlikoff v. The Community News, 89 N.J. 62, 67, 444 A.2d 1086 (1982). However, as a matter of public policy, "our courts have recognized the existence of certain situations in which pu......
  • Kerik v. Tacopina, No. 14 Cv. 2374JGK.
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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 2, 2014
    ...146, 603 N.Y.S.2d 813, 623 N.E.2d 1163, 1167 (1993) (defining what constitutes a “non-actionable opinion”); Kotlikoff v. The Cmty. News, 89 N.J. 62, 444 A.2d 1086, 1091 (1982) (same). And finally, despite the defendant's argument to the contrary, the states appear to be in accord regarding ......
  • Dairy Stores, Inc. v. Sentinel Pub. Co., Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • October 21, 1986
    ...New Jersey courts have long accorded protection to wide-ranging statements about public officials. Kotlikoff v. The Community News, 89 N.J. 62, 65, 444 A.2d 1086 (1982); Leers v. Green, supra, 24 N.J. at 258-59, 131 A.2d 781. The courts have likewise applied the principle to controversial p......
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100 cases
  • Demetro v. N.A. of Bunco Investigations, Civ. No. 14-6521 (KM) (SCM)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 25, 2019
    ...publication. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 189 (3d Cir. 1998) (citing Kotlikoff v. Community News, 89 N.J. 62, 444 A.2d 1086, 1088 n. 1 (N.J. 1982)). The parties here do not really assert that Del Rosso defamed Demetro when he complained to the Woodbridge PD.......
  • In re Quality Botanical Ingredients, Inc., Bankruptcy No. 99-5800
    • United States
    • U.S. Bankruptcy Court — District of New Jersey
    • June 16, 2000
    ...The determination of whether a statement is defamatory is a question of law determined by the court. Kotlikoff v. The Community News, 89 N.J. 62, 67, 444 A.2d 1086 (1982). However, as a matter of public policy, "our courts have recognized the existence of certain situations in which public ......
  • Dairy Stores, Inc. v. Sentinel Pub. Co., Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • October 21, 1986
    ...New Jersey courts have long accorded protection to wide-ranging statements about public officials. Kotlikoff v. The Community News, 89 N.J. 62, 65, 444 A.2d 1086 (1982); Leers v. Green, supra, 24 N.J. at 258-59, 131 A.2d 781. The courts have likewise applied the principle to controversial p......
  • Sisler v. Gannett Co., Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • October 21, 1986
    ...fair comment protection to speech regarding individuals who had assumed the risks of publicity. See Kotlikoff v. The Community News, 89 N.J. 62, 444 A.2d 1086 (1982) (public officials); Leers v. Green, supra, 24 N.J. 239, 259, 131 A.2d 781 (same); Mick v. American Dental Ass'n., 49 N.J.Supe......
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