Harrison, J.c.c. (temporarily assigned).
[116 NJSuper Page 406] This matter comes before the court on motion for summary judgment filed by defendant Peter Gruntfest against libel charges made by plaintiffs Robert Scelfo and Charles O'Connor, and as to both cross-complaints pending. Defendants Rutgers University and Dr. Louis Zocca move for an order granting summary judgment to them against all other parties to the action. The complaint filed by Scelfo and O'Connor, two Newark mounted policemen, against Rutgers, Gruntfest and Zocca alleges that defendants did willfully and maliciously write and publish or cause to be written and published false and libelous statements in the Rutgers Observer of November 13, 1968. Defendant Gruntfest in his answer alleged that his essay failed to identify plaintiffs; his essay was not the proximate cause of the alleged defamation in view of defendants Rutgers and Zocca control of the newspaper; the statements therein are not false or defamatory, and plaintiffs, who are public officials, do not allege nor establish actual malice. A cross-claim was filed by Rutgers and Zocca against Gruntfest for indemnification and contribution, alleging that they did not exercise control over the paper. Gruntfest filed a cross-claim for indemnification and contribution against Rutgers and Zocca, alleging their responsibility for the article as published with headline and photo.
The facts are essentially undisputed by the parties. On November 5, 1968, Election Day, some Rutgers University-Newark students participated in a public demonstration which included a march from Federal Square to Military Park. The demonstration was sponsored by the undergraduate "Students for a Democratic Society" chapter (hereinafter "SDS"). The undergraduate chapter of "Young Americans for Freedom" (hereinafter "YAF") initiated a counter-demonstration. The confrontation between the two groups resulted in skirmishes, yelling and missile throwing. The SDS group retreated into the Campus Center building with YAF remaining outside. Plaintiffs, who were among six Newark mounted policemen assigned to the campus at the time, stood between the two groups at the Campus Center. Defendant Gruntfest, an undergraduate student present at the rally, wrote an essay describing his experiences and feelings on that day, which he submitted to the editorial staff of the Rutgers Observer , the weekly undergraduate newspaper. Gruntfest was not a member of the staff and did not see or hear of his essay again until it appeared in print in the paper on November 13, 1968, together with a photograph of two policemen mounted on horseback and with a headline, "YAF's, Cops, Rightists: Racist Pig Bastards."
In libel actions the preliminary question for the trial court is whether the words at issue are reasonably capable of a defamatory meaning. State v. Browne , 86 N.J. Super. 217 (App. Div. 1965); Neigel v. Seaboard Finance Co. , 68 N.J. Super. 542 (App. Div. 1961); Sokolay v. Edlin , 65 N.J. Super. 112 (App. Div. 1961); Coleman v. Newark Morning Ledger Co. , 29 N.J. 357 (1959); Mick v. American Dental Ass'n , 49 N.J. Super. 262 (App. Div. 1958); and Dressler v. Mayer , 22 N.J. Super. 129 (App. Div. 1952). Only where words are ambiguous in the sense of being reasonably subject to either a legally innocent as well as defamatory significance, as determined by the court, does the jury decide as a question of fact whether the readers
or public understood the language in its defamatory sense. Mosler v. Whelan , 48 N.J. Super. 491 (App. Div. 1958), rev'd 28 N.J. 397 (1958); Herrmann v. Newark Morning Ledger Co. , 48 N.J. Super. 420 (App. Div. 1958); Leers v. Green , 24 N.J. 239 (1957). The court has the duty to terminate the proceedings where in any reasonable view of the evidence the charge of libel has not been sustained. Leers, supra. Summary judgment is not to be denied if documents pertinent to the motion show palpably the absence of any material fact issue, although the allegations of the pleadings, standing alone, may raise such an issue. Judson v. Peoples Bank and Trust Co. of Westfield , 17 N.J. 67 (1954). In this case, examination of the depositions taken of plaintiffs and the affidavits furnished by defendant Gruntfest of other witnesses to the events of November 5, 1968, reveals that no material issue of facts has been raised. In accordance with the above criteria, we conclude that the article as published is not reasonably susceptible of defamatory interpretation and is thus not libelous as a matter of law.
The court reaches the foregoing conclusion because the essay, as written by defendant Gruntfest or inserted under headline and photograph in the article, failed to identify plaintiffs and thus cannot serve as a basis for a defamation action. An essential ingredient of a libel is that it must be "of and concerning" the plaintiff so that a third person could understand the communication to relate to said plaintiff. Gnapinsky v. Goldyn , 23 N.J. 243 (1957). In balancing the societal interest in free speech and press against the individual interest in reputation, courts have chosen not to limit the former except to prevent injury from defamatory statements reasonably susceptible of a definite application to a particular individual. Rosenblatt v. Baer , 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966). Plaintiffs have not presented evidence for a finding that the article referred specifically to plaintiffs, or that it was reasonably believed by some person aware of the article that these plaintiffs
were in fact intended -- requirements which are explained in Gnapinsky v. Goldyn, supra. Extrinsic circumstances may serve to identify the persons allegedly defamed, but plaintiffs presented nothing of sufficient evidential force to warrant such a finding here.
In Mick v. American Dental Ass'n, supra , plaintiff alleged that publications circulated by defendant, although they did not identify or name plaintiff, were libelous due to defendant's well-known public opposition to fluoridation. Defendant there succesfully contended that such publications did not refer, either expressly or by implication, to plaintiff. The court in reaching its decision enunciated certain rules regarding group defamation, namely that when alleged defamatory words are directed at a group, plaintiff must show that the words applied to him. However, in the present case we do not have a sweeping charge leveled at the entire mounted police squad without exception, but a charge directed to certain unidentified members of the squad assigned to campus. There was no indication that the officers in the photograph were intended objects of criticism. The United States Supreme Court in Rosenblatt v. Baer, supra , supports this established point of law that an imputation regarding one or some of a small group that may cast suspicion on all is not actionable.
Only an explicit charge directed to particular plaintiffs or the entire force would allow any member of the identified group to recover. Such recovery is subject, however, to a showing of "actual malice" if plaintiff is deemed a "public official" within the meaning of New York Times Co. v. Sullivan , 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
In a recent New Jersey case dealing with the issue of identity, Weller v. Home News Pub. Co. , 112 N.J. Super. 502 (Law Div. 1970), plaintiffs advanced the theory that they were libelled because readers of defendant newspaper recognized a profile photograph of their mother, ...