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Mosler v. Whelan

Decided: December 15, 1958.


For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Francis, J. Wachenfeld, J., concurring in result.


Plaintiff sought compensatory and punitive damages, claiming that defendant had libelled him. The jury unanimously decided otherwise. However, the Appellate Division reversed on the ground that the publication in issue was libelous per se. We granted certification.

The evidence adduced at the trial might well justify a description of the Borough of Paramus, locale of origin of this controversy, as a seething cauldron of political tempest. Such characterization is not disparaging of the borough, for controversy in political and civic affairs resulting from intense interest on the part of the citizenry ordinarily makes for good and responsible government. Short tempers, injudicious language and sometimes indecorous insults, although much to be decried, are concomitants of such a scene. The process of free debate in political controversies and campaigns is a time-honored American tradition. It is indispensable to our way of life and the law of libel should not be permitted to encroach unduly upon it. The problem of harmonizing the right of the individual to his good name with the need of a democratic society to full and free expression is frequently a delicate one in the area of politics. The ordinary citizen is well aware that in the day-to-day contest persons engaged in that activity are praised by their adherents and assailed by their adversaries. He has become accustomed to reading both good and bad comments about the candidates and those associated with them, and he may reasonably be expected to understand that the partisan out-pourings are likely to be biased and exaggerated and to accord no greater credence to one viewpoint than to the other. And so recognition of the social need for freedom of speech has brought with it the doctrine that even though criticism may be captious, ill-founded and unjust, it is not

libelous unless it exposes the object thereof to hatred, contempt, ridicule or disgrace or subjects him to loss of the good will and confidence of the community. Cf. Leers v. Green, 24 N.J. 239, 251 (1957); Tanzer v. Crowley Publishing Corp., 240 App. Div. 203, 268 N.Y.S. 620 (App. Div. 1934).

At all times to be mentioned the plaintiff Mosler was president of the local Democratic Club and in charge of its publicity. His regular business was advertising. He had been campaign manager for the Democratic candidates for councilmen in the general election of November 1955, and he acted in that capacity on behalf of Fred C. Galda, the successful Democratic candidate for mayor in the 1956 primary and general election.

On February 20, 1956 the local Republican nominating committee endorsed Robert A. Renna as its candidate for mayor in the 1956 election in preference to another aspirant. On February 28, 1956 Mosler prepared and issued a press release on behalf of the Paramus Democratic Club, recommending that the Republican Club support Galda. A news story based on it was published in The Paramus Post on March 4 and said among other things that such a move would

"[g]ive the split Republican party an opportunity to back nonpartisan government and completely reorganize so that on some future date, Republicans will be able to offer men of mayoralty stature in the primaries instead of arguing among themselves about two would-be candidates, both lawyers for real estate developers, and one a Democratic cast-off."

The release also appeared in substance in the Bergen Evening Record of February 29, 1956. There the references to Renna and the other contender for the Republican endorsement as "both lawyers for real estate developers" and to Renna as "a Democratic cast-off" were specifically attributed to Mrs. Harry Ferrante, chairman of the Democratic Club executive committee. According to Mrs. Ferrante's testimony the action taken by the committee was substantially as Mosler's release described it, but she denied that she made or authorized the comments attributed

to her. While on the stand, Mosler conceded her repudiation to be factual and indicated that the mention of Mrs. Ferrante did not come from him but sprang from an assumption by the Record reporter.

Galda (a friend and political associate of Mosler) and Renna were in opposite camps in the 1955 municipal election. In September of that year, referring to criticism by Renna of a zoning ordinance, Galda said, as noted in a local paper:

"To see a worthy ordinance, a constructive structure of legislation, that means so much to the future of the twenty thousand residents of Paramus * * * jeopardized by selfishness, vindictiveness or the black hand of revenge * * *."

The Black Hand may be defined as a "criminal society first appearing about 1868. Later, when many of its members fled to the United States, they formed the nucleus there of a lawless or blackmailing secret society." Webster's New International Dictionary, p. 280 (2 d ed. 1949). Speculation as to any intended covert sting need not be indulged in. The mention is made only to emphasize the spirit of the campaign.

Renna was originally a Democratic office holder and for some undisclosed reason had joined the opposition. This seems to have stimulated the charge that he was seeking revenge. On October 3, 1955, the Bergen Evening Record reported that in speaking of Renna, Mosler said:

"* * * [a]ll those who have worn the label independent so far are nothing more than the voices of this man crying hatred against the present Democratic government."

Mosler conceded authorship of the statement. Similarly, on October 6 the local newspaper recounted (and Mosler admitted at the trial) that he said of Renna and the organization known as Independent Citizens of Paramus:

"They are no more independent than I am, and they are the tools of the Republican party and of the man who has only one thing in his heart and that is revenge."

And in the February 28, 1956 release already referred to, Mosler quoted himself as saying:

"* * * Democrat, Independent, or Republican, Renna will run on any ticket that promises a profitable future."

This background brings us to the defendant Whelan and his activities. He is a resident of Paramus and by occupation a clerk at Curtiss-Wright Corporation. He was president of the Independent Citizens of Paramus, a political group composed of members of both major political parties. He has never sought or held any elective or appointive office in the borough. Whelan, who knew Mosler only casually, having come in contact with him occasionally at meetings, had read the various publicity releases and particularly those of February and March 1956, to which reference has been made. He testified with respect to them:

"Many times I would read and re-read articles concerning issues between the parties, the political parties in the town, and in reading many of the releases by the Democratic group, the previous campaigns, I concluded that someone should express an opinion through the newspapers in opposition to the political campaign tactics employed by Mr. Mosler throughout two or three campaigns and throughout the entire years in which I have read the articles, because I felt definitely they were un-American."

Responding to this motivation, Whelan wrote the letter which provoked the instant libel action. It was published in The Paramus ...

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