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March 23, 1981

WORTH PUBLISHERS, INC. and James Sempepos

The opinion of the court was delivered by: WHIPPLE

This matter is before the Court on the motion to dismiss for failure to state a claim filed by defendant Worth Publishers, Inc. (hereinafter "Worth"). F.R.Civ.P. 12(b)(6). Alternatively, Worth has filed a motion for summary judgment on the ground that the action is untimely under the appropriate statute of limitations for libel and right of privacy actions. F.R.Civ.P. 56.

Plaintiff is a New York/New Jersey Port Authority police officer. He complains of a defamatory picture and caption published by Worth in a college-level sociology textbook entitled Sociology. This allegedly defamatory matter is found in chapter 8, "Deviance," in a subchapter headed, "Selecting the Criminals." The picture depicts a white male policeman in a public place who appears to be prodding a black man with his nightstick in order to prevent the man from falling asleep. The caption beneath the picture reads:

 Plaintiff frames two causes of action against Worth based on this publication. *fn1" He first claims that the matter is libelous because it portrays him "in an awkward, ludicrous, and contemptible light, falsely representing him ... as being unscrupulous and racially prejudiced," and holding him up to "public scorn, hatred and ridicule ..." Second, plaintiff claims that his privacy rights have been violated in that he has been placed in a false light by the unauthorized use of his picture. Plaintiff additionally alleges a violation of his right to privacy as codified by Sections 50 and 51 of the New York Civil Rights Law which, in pertinent part, provides that, "Any person whose ... picture is used within this state for advertising purposes or for purposes of trade without ... written consent ... may ... sue and recover damages ..."

 The parties submitted moving papers accompanied by affidavits, exhibits, and briefs, and also engaged in oral argument before the Court. For the reasons set forth herein, defendant's motion to dismiss is granted.

 Applicable Law

 At the outset, this Court notes that it agrees with the parties that the law of New Jersey is applicable in this diversity case. Under New Jersey law, the torts of defamation and false light invasion of privacy are separate and distinct. See, e.g., Devlin v. Greiner, 147 N. J. Super. 446, 456, 463-64, 371 A.2d 380 (Law Div.1977). Therefore the Court will examine these claims separately. *fn2"

 Defendant's Motion To Dismiss Libel Claim

 Defendant, in support of its motion to dismiss with respect to plaintiff's libel claim, contends that the challenged portions of the textbook do not contain defamatory statements of or concerning plaintiff. At best, the statements in question constitute innuendo, and therefore can not predicate a libel action brought by a plaintiff who is a public official, such as Mr. Cibenko. Further, the innuendo, if drawn, is merely opinion, and thus is protected by the First Amendment and is not actionable.

 Whether words can reasonably be construed as defamatory is a question of law for the Court in the first instance. Restatement (Second) of Torts, § 614, Comment b (1977); Pierce v. Capital Cities Communications, 576 F.2d 495, 502 (3d Cir. 1978), cert. denied, 439 U.S. 861, 99 S. Ct. 181, 58 L. Ed. 2d 170 (1980). In making this determination, the Court must examine the publication as a whole. See, e.g., Washington Post Co. v. Chaloner, 250 U.S. 290, 293, 39 S. Ct. 448, 63 L. Ed. 987 (1919); Rinsley v. Brandt, 6 Med.L.Rptr. 1222, 1225 (D.C.Kan.1980), and cases cited therein. As articulated by the Third Circuit in Pierce v. Capital Cities Communications, Inc., supra at 502:

Ascertaining whether a communication is capable of a defamatory meaning depends upon what a recipient "correctly, or mistakenly but reasonably, understands" what the statement was intended to express. It is established that a court should not scrutinize simply the literal references of the language in question, but should also weigh the words "together with their context." Restatement, Second, Torts, § 563, Comment (d).

 In light of these guidelines, the Court has carefully scrutinized the complained of material and the context in which it appears, and concludes that there is no actionable defamation. The caption and picture at issue do not constitute a defamatory falsehood of or concerning plaintiff within the meaning of Restatement (Second) of Torts, §§ 558 and 564 (1977). *fn3" Rather, the picture in which plaintiff appears, and the accompanying caption, are utilized solely in an educational context in the exploration of important social issues, particularly the selection of criminals in society. Plaintiff is not identified in the caption or, indeed, in the entire chapter. Instead, the caption merely describes what appears to be occurring in the picture and poses a rhetorical question calculated to provoke the student's mind and induce discussion. Therefore, no libelous meaning can be imputed to plaintiff. See Bourgeau v. New York News, 5 Med.L.Rptr. 1799, 1800 (N.Y.Sup.Ct., N.Y.Co. Sept. 14, 1979); Roskos v. New York News, 4 Med.L.Rptr. 2148 (N.Y.Sup.Ct.Spec.Term Part I, Suffolk Cty., Jan. 8, 1979). Moreover, since the text as a whole is not "of or concerning" plaintiff, or susceptible of a libelous meaning, the complained of matter is not defamatory, and plaintiff cannot by innuendo make it so. Shapiro v. Newsday, 5 Med.L.Rptr. 2007, 2008 (N.Y.Sup.Ct., Queens Cty., Mar. 7, 1980). See also Fogel v. Forbes, 500 F. Supp. 1081 (E.D.Pa.1980); Varela Furniture v. New York News, 6 Med.L.Rptr. 1699, 1700 (N.Y.Sup.Ct., Queens Cty., July 29, 1980).

 Even if innuendo implying that plaintiff is racially prejudiced were drawn, it would be insufficient to constitute actionable libel. As a transit police officer, Cibenko is a public official; in fact, he acknowledged as much in his complaint. La Rocca v. New York News, Inc., 156 N. J. Super. 59, 383 A.2d 451 (App.Div.1978). Consequently, in order to prevail against Worth, Cibenko must meet the rigorous standards enunciated in New York Times v. Sullivan, 376 U.S. 254, 279-83, 84 S. Ct. 710, 725-27, 11 L. Ed. 2d 686 (1964), and prove that Worth acted with "actual malice", i. e., reckless disregard of truth or calculated falsity. Actual malice can only arise from a false statement of fact, and because this prerequisite is lacking here, no defamation can be shown. See Baird v. Roussin, 6 Med.L.Rptr. 1555 (D.Mass.1980); Loeb v. New Times, 497 F. Supp. 85 (S.D.N.Y.1980).

 In any event, the innuendo, if drawn, is simply the author's commentary on undisputed facts. As such, it is editorial opinion, safeguarded by the First Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S. Ct. 2997, 3006, 41 L. Ed. 2d 789 (1974). This protection ...

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