Walko v. Kean College of New Jersey

• Citation: 561 A.2d 680,235 N.J.Super. 139
• Parties: , 55 Ed. Law Rep. 176 Ann WALKO and Michael Walko, Plaintiffs, v. KEAN COLLEGE OF NEW JERSEY, Student Organization of Kean College of New Jersey, a corporation of the State of New Jersey, Council for Part-Time Students, a corporation of the State of New Jersey, Nanette Strehl, Heidi Errington, Lori Rapuano, Mina Botash, Steve Dowling, Dan Kachoogian, Gary Black, Tom O'Donnell, and Patrick Ippolito, Defendants.
• Decision Date: 08 July 1988
• Court: Superior Court of New Jersey

Page 139

235 N.J.Super. 139

561 A.2d 680, 55 Ed. Law Rep. 176

Ann WALKO and Michael Walko, Plaintiffs, v. KEAN COLLEGE OF NEW JERSEY, Student Organization of Kean College of New Jersey, a corporation of the State of New Jersey, Council for Part-Time Students, a corporation of the State of New Jersey, Nanette Strehl, Heidi Errington, Lori Rapuano, Mina Botash, Steve Dowling, Dan Kachoogian, Gary Black, Tom O'Donnell, and Patrick Ippolito, Defendants.

Superior Court of New Jersey, Law Division Union County.

Decided July 8, 1988.

Carol Lonergan Perez, Piscataway, for plaintiffs (Palumbo & Renaud), Elizabeth

Emerald Erickson, Deputy Atty. Gen., for defendants Kean College of New Jersey and Patrick Ippolito.

John S. Fitzpatrick, for defendant Student Organization of Kean College and Tom O'Donnell (Haggerty & Donohue), Summit.

Michael J. Lunga, for defendant Student Organization of Kean College and Tom O'Donnell (punitive damages only) (Salerno & Lunga), Verona.

Kathleen Burns, (Sills, Beck, Cummis, Zuckerman, Radin, Tischman & Epstein), Newark, and

Robert W. McAndrew, Livingston, for defendant Council for Part-Time Students, Inc. (punitive damages only).

Michael T. Cooney (Hueston, Hueston & Sheehan), Elizabeth and William T. Marsden, Passaic, for defendant Gary Black (Jeffer, Hartman, Hopkinson, Vogel, Coomber & Peiffer), Hawthorne.

David E. Rehe, for defendant Dan Kachoogian (Haskins, Hack, Piro, O'Day, Merklinger & Wallace), West Orange.

Marian B. Copeland, for defendant Lori Rapuano (Stevens & Gomperts), Cranford.

David Scott Mack, for defendant Nanette Strehl (McGimpsey & Cafferty), Somerset.

Janice L. Birnbaum, for defendant Heidi Errington (Stryker, Tams & Dill), Newark.

Harry B. Kotler, Elizabeth, for defendant Steve Dowling.

Mina Botas, pro se.

WECKER, J.S.C.

INTRODUCTION

Plaintiff's Complaint centers around a publication of the Kean College student newspaper, the Independent. More specifically, the claims arise out of a "spoof" edition, entitled the Incredible, which was published as pages seven to thirteen of the April 25, 1985 newspaper. The thirteenth page is composed entirely of phony "ads" including the one at issue:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There was at the time a genuine ad that regularly appeared in the Independent to publicize the student-run telephone "Hotline." That ad appeared at page 18 of the April 25, 1985 edition of the Independent:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The entire edition of the Incredible has been examined, and the context of the ad is a determinative factor in this court's ruling granting summary judgment to all defendants ¹ on all counts. What is at stake here is the balance to be struck between the First Amendment's guarantee of freedom of the The April 25, 1985 edition of the Independent included the following items related to the real "Hotline:"

press, and the individual's interest in reputation, peace of mind, and freedom from emotional distress. On these facts, freedom of the press outweighs the individual's interest.

                Page One             Headline article regarding threatened
                                     loss of funding for full-time director
                                     The Article continues on pages three
                                     and six
                Page Four            Headline Editorial regarding the Hotline
                                     loss of funding
                Pages Four and Five  Letters to the Editor regarding loss of
                                     funding.
                

DEFAMATION

A parody or spoof that no reasonable person would read as a factual statement, or as anything other than a joke--albeit a bad joke--cannot be actionable as a defamation. See, e.g., Pring v. Penthouse International, Ltd., 695 F.2d 438 (10th Cir.1982); but see Miss America Pageant, Inc. v. Penthouse International, Ltd., 524 F.Supp. 1280 (D.N.J.1981) (same alleged parody article held not absolutely privileged). Even where a word is used that usually denotes criminal activity, it is constitutionally protected when no reasonable reader would perceive it as anything but "rhetorical hyperbole." Greenbelt Publishing Assn. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1542, 26 L.Ed.2d 6 (1970) (plaintiff's activities were described as "blackmail" at a city council meeting.)

Here, the "announcement" appears under the title "Annoyances/Classicals" on the sixth page of a seven page spoof insert that contains not a single serious article. "This in itself would seem to provide a sufficient signal that the story could not be taken literally, and the portions charged as defamatory could not reasonably be understood as a statement of fact." Pring v. Penthouse International Ltd., 695 F.2d at 441.

In Pring, defendant Penthouse had published an article about "Charlene," Miss Wyoming in a Miss America contest. The article was hardly a model of good taste. It described "Charlene's" talents as a baton twirler, including her ability to perform acts of fellatio with the baton. 695 F.2d at 440-441. Plaintiff, the "real" Miss Wyoming, apparently was not amused by the story and sued. The Tenth Circuit found that:

The First Amendment is not limited to ideas, statements or positions which are accepted; which are not outrageous; which are decent and popular; which are constructive or have some redeeming element; or which do not deviate from community standards and norms; or which are within prevailing religious or moral standards. Although a story may be repugnant in the extreme to an ordinary reader, ... the typical standards and doctrines under the First Amendment must nevertheless be applied. [Id. at 443].

Cf. Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).

It is first for the Court to consider whether the publication is defamatory on its face, or is subject to both defamatory and non-defamatory meanings, or is not subject to any defamatory meaning. E.g., Romaine v. Kallinger, 109 N.J. 282, 290-92, 537 A.2d 284 (1988). Only if the Court finds both defamatory and non-defamatory interpretations is there a question of fact for the jury. Id.; Lawrence v. Bauer Publishing and Printing, Ltd., 89 N.J. 451, 459, 446 A.2d 469 (1982), cert. den., 459 U.S. 999, 103 S.Ct. 358, 74 L.Ed.2d 395 (1982); Molnar v. Star-Ledger, 193 N.J.Super. 12, 17-18, 471 A.2d 1209 (App.Div.1984). The "Whoreline" ad that plaintiff complained of appeared surrounded by a page of obviously "fake" ads, in the middle of what was unquestionably a parody of the usual student newspaper. Plaintiff Ann Walko's name was listed along with three other well-known names on campus, male and female, one of whom was also a member of the college administration. No reasonable person, even glancing at the offending ad, could possibly conclude that it was a factual statement of plaintiff's availability for "good telephone sex."

In the context presented, the "announcement" is simply not a statement of fact. It is surrounded by other short, absurd announcements in a section which is clearly delineated as intended Our case law has made it abundantly clear that a challenged publication must be viewed in context to determine whether or not it is subject to a defamatory meaning. See Karnell v. Campbell, 206 N.J.Super. 81, 89 (App.Div.1985); Molnar v. Star-Ledger, 193 N.J.Super. at 18, 471 A.2d 1209. Summary judgment is a particularly appropriate method for resolving such questions. E.g. Kotlikoff v. The Community News, 89 N.J. 62, 67, 444 A.2d 1086 (1982). In addition to the immediate context of the other ads and the broader context of the seven-page parody section of the newspaper, the court notes the prior publication of articles and letters to the editor regarding controversial changes being proposed for the genuine telephone "Hotline." Given all of the surrounding circumstances, the Court is compelled to conclude that virtually everyone who read Ann Walko's name in the "Whoreline" ad would know that it was a joke ... not a very good joke, perhaps; downright vulgar and tasteless, most readers probably would conclude; but definitely not an assertion of fact that anyone would take seriously. See Pring v. Penthouse International, 695 F.2d 438, 443 (10th Cir.1982) ("... it is simply impossible to believe that a reader would not have understood that the charged portions were pure fantasy and nothing else.") Not being an assertion of fact, the ad must be treated as a protected expression of opinion. See id. It is thus absolutely privileged under the First and Fourteenth Amendments to the United States Constitution and under Article Six of the New Jersey Constitution.

humor. In short, no person could reasonably believe there is actually an entity entitled "Whoreline," featuring Janice Murray, Ann Walko, Steve Guttman and Matt Lynch. Accordingly, the plaintiff's claim for defamation must be dismissed as a matter of law.

The United States Supreme Court emphasized in the recent decision in Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) that it is not the value of the obviously vulgar ad itself, but rather the inherent danger in trying to set standards for value in a cartoon, satire, or parody,

that requires protection even for the most unthinkable publications.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A parody or spoof that is not actionable as defamation cannot as a matter of law form the basis of a recovery for intentional infliction of emotional distress, i.e., the tort of outrage. This has been unequivocally determined as a matter of constitutional law by the United States Supreme Court in its February 24, 1988 decision in Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).

The Supreme Court accepted the trial jury's verdict on the factual question, finding that the Hustler ad parody could not " 'reasonably be understood as describing actual facts about (respondent) or actual events in which (he) participated.' " The Supreme Court went on to...