This is an action for defamation where defendants have moved for summary judgment. Raised by this motion is the question of whether or not a governmental entity may maintain an action for defamation in its own right. There do not appear to be any reported cases in New Jersey which have addressed the issue and the question has received limited attention nationally. For the reasons to be stated below, however, it is the opinion of this court that the question should be answered in the negative.
Plaintiff is a local board of education. Defendants include a taxpayers' association and certain of its members. Plaintiff alleges that it was defamed by reason of certain remarks published by defendants, the substance of which indicates that the board misused, lost or possibly embezzled substantial school board funds. It is asserted that these statements were untrue, that defendants knew they were untrue and that they maliciously published the statements with intent to injure plaintiff. For purposes of the within motion the facts related above are admitted. R. 4:46-2.
The few out-of-state cases which have considered whether a governmental entity, such as the board of education here, may maintain an action for defamation in its own right have consistently concluded that it cannot. Annotation, "Right of Governmental Entity to Maintain Action for Defamation," 45 A.L.R. 3d 1315 (1972). The leading case in this area is Chicago v. Tribune Co. , 307 Ill. 595, 139 N.E. 86 (Sup.Ct.1923). In that case the city charged the defendant newspaper with publishing a series of defamatory articles which claimed that Chicago was broke, that bankruptcy was just around the corner and that the administration had "busted the city." Plaintiff alleged that the articles were untrue and maliciously made with intent to injure the city's credit and financial standing. The court sustained the defendant's demurrer to the claims, holding that speech or writing directed against a governmental entity was absolutely
privileged. 307 Ill. 595, 139 N.E. at 90. The only restriction on this privilege was held to be where the speech or writing seeks to persuade others to violate existing law or overthrow the existing government by force or other unlawful means. Ibid.
The court noted, further, that the American system of government is founded upon the principle that the citizen is the source of all authority and is thus sovereign. When acting in that sovereign capacity, as he presumably does in expressing his views on government, he is discharging his public duties and must be given the same privilege afforded to members of the legislature, judges and other persons engaged in the administration of justice. 307 Ill. 595, 139 N.E. at 91. The court thus concluded: "This action is out of tune with the American spirit, and has no place in American jurisprudence." Ibid.
The above reasoning was essentially adopted by every other court which has faced this issue.*fn1 Albany & Meyer , 99 Cal.App. 651, 279 P. 213 (D.Ct.App.1929); Johnson City v. Cowles Communications, Inc. , 477 S.W. 2d 750 (Tenn.Sup.Ct.1972); State v. Time, Inc. , 249 So. 2d 328 (La.App.1971); Capital Dist. Reg'l Off-Track Betting Corp. v. Northeastern Harness Horsemen's Ass'n , 92 Misc. 2d 232, 399 N.Y.S. 2d 597 (Sup.Ct.1977).
Further support for the rejection of plaintiff's claim may be found in the landmark case of New York Times Co. v. Sullivan , 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). The Supreme Court there held that a public official may not recover damages for defamatory falsehoods relating to his official conduct unless
he can prove that such statements were made with actual malice. Although that suit did not include any claims in behalf of a governmental entity and thus did not involve the issue being examined here, the court nevertheless reiterated the general principles outlined in the cases previously cited, with particular attention given to Chicago v. Tribune Co., supra. As part of that review the court made the following observation:
Plaintiff seeks to distinguish the above-cited cases by suggesting that the principles outlined in Chicago v. Tribune, supra , and the opinions which followed should be confined to situations involving criticism of the financial policies of governmental entities.*fn2 Prosser, Torts (4 ed. 1971), § 111 at 746. Such a suggestion overlooks the strong public policy and constitutional reasoning upon which the opinions are based. Nor is there any reason in logic to insulate criticisms dealing with financial management and those directed to management in general. Even if this proposition were accepted, which it is not, such a view would provide little help to plaintiff here, since it is the school board's financial management which prompted the statements alleged to have been libelous.
Plaintiff next urges that the privilege should attach only when the criticism is directed at an "inefficient or corrupt government." Chicago v. Tribune Co., supra , 307 Ill. 595, 139 N.E. at 90. It is alleged that in the case at bar the defamation continued after defendants knew that plaintiff was not corrupt. This argument is also rejected by this court. All of the cases cited were decided on motions which required the defendants to admit the ...