Kotlikoff v. The Community News

• Decision Date: 27 April 1982
• Citation: 89 N.J. 62,444 A.2d 1086
• 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.
• Court: New Jersey Supreme Court

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.

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. 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 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. 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.

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 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. 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 imputations are warranted by the facts, and (c) must be the honest expression of the writer's real opinion; and if the comment complies with these conditions, it is fair comment, however incorrect be the views expressed by the critic, or however exaggerated or even prejudiced be the language of the criticism; the "limits of criticism are exceedingly wide." Gatley, Libel and Slander, sections 344, 354. [Leers v. Green, 24 N.J. 239, 254-55, 131 A.2d 781 (1957).]

However, with the Supreme Court decisions in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the "fair comment" doctrine became obsolete insofar as its application is confined to a mere expression of opinion. The Court stated in Gertz :

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. [Id. at 339-40, 94 S.Ct. at 3006-07, 41 L.Ed.2d at 805 (footnote omitted).]

Section 566 of the Restatement (Second) of Torts (1977) dwells on the distinction between protected expressions of opinion and unprotected false statements of fact. Comment b to that section indicates that there are two types of expression of opinion. The first, or "pure", kind is found when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then states a view as to the plaintiff's conduct, qualifications or character. "Pure" expression of opinion occurs also when the maker of the comment does not spell out the alleged facts on which the opinion is based but both parties to the communication know the facts or assume their existence and the statement of opinion is obviously based on those assumed facts as justification for the opinion. The second, or "mixed", type of expression of opinion is one that, while an opinion in form or context, is apparently based on facts about the plaintiff or his conduct that have neither been stated by the...