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Kotlikoff v. Community News

Decided: April 27, 1982.


On certification to the Superior Court, Appellate Division.

For reversal -- Chief Justice Wilentz, and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The opinion of the Court was delivered by Clifford, Justice.


[89 NJ Page 64] This case addresses an aspect of the constitutional protection accorded expression of opinion about a public figure. Our consideration of the subject comes in the wake of recent Supreme Court decisions dealing with defamation. Plaintiff claims that allegations of a "cover up" contained in defendant Leather's letter to the editor of a local newspaper were defamatory. The trial court, ruling that the remarks were privileged as fair comment, granted defendants' motion for summary judgment.

The Appellate Division reversed and remanded. We reverse and reinstate the trial court judgments in favor of defendants.

Although we conclude that under Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), the common law privilege of fair comment is no longer relevant, we hold that the opinions set forth in defendant's letter are protected by the First Amendment. Inasmuch as the statements contained in the letter were not defamatory, we do not reach the question of whether they were published with the actual malice required to sustain an action for defamation against a public official. See Lawrence v. Bauer Publishing & Printing, 89 N.J. 451, 467-68 (1982).


The Community News is a small, local newspaper published weekly and distributed generally by The Community News, Inc. in Pennsauken, Merchantville, and Delair, New Jersey. In its March 27, 1975 edition the Community News published a "letter to the editor" written by defendant Robert Leather, a resident of Pennsauken, criticizing the official conduct of plaintiff, Louis J. Kotlikoff, then the Mayor of Pennsauken. In the letter, which was published under the heading "A Conspiracy?", Leather suggested that Mayor Kotlikoff and Tax Collector Harold Roesler, who had repeatedly refused to reveal the names of property owners delinquent in their payment of local property taxes, might be "engaged in a huge coverup." The letter expressed concern that the decline in property tax collections would cause an increase in the tax rate, and criticized Kotlikoff and Roesler for withholding from the public and the Township Committee the names of delinquent taxpayers. Leather's letter concluded by stating that the circumstances surrounding Roesler's refusal to make public records available "add[ed] to the belief that there is a conspiracy * * *."

Shortly thereafter Kotlikoff filed this suit alleging that the newspaper's publication of the letter was libelous, defamatory,

and damaging to his reputation. He named as defendants The Community News; its publisher, the Suburban Newspaper Group; its general manager, Louis J. Recchino; its executive editor, Albert Mattern; its advertising director, James R. Rodi (hereinafter referred to collectively as the newspaper defendants); and the writer of the allegedly defamatory letter, Robert Leather.*fn1

The newspaper defendants filed two motions for summary judgment. In the first motion they claimed that the complaint and affidavits of plaintiff, a public official, had failed to allege sufficient facts to permit the conclusion that the newspaper had published the letter with actual malice. After the court denied that motion, the newspaper defendants filed a second summary judgment motion on the ground that the newspaper's publication of the letter to the editor was not libelous or defamatory as a matter of law. The trial court granted that motion, holding that the letter was not reasonably susceptible of a defamatory interpretation inasmuch as it expressed simply an opinion based upon disclosed facts. Consistent with that determination the trial court thereafter entered summary judgment for Leather.

Plaintiff appealed from the summary judgments against him, and the newspaper defendants cross-appealed the denial of their motion for summary judgment on the issue of actual malice. The Appellate Division reversed the summary judgments in favor of defendants and remanded the matter for further proceedings. It held that the letter could reasonably be interpreted as accusing plaintiff of having committed criminal conspiracy; hence a jury should have decided whether it was in fact defamatory. In a supplemental opinion the Appellate Division held that the trial court had correctly determined that the issue of actual malice involved questions of fact.

We granted the defendants' petitions for certification, 87 N.J. 428 (1981), and 88 N.J. 500 ...

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