On appeal from Superior Court, Law Division, Monmouth County.
Antell, Joelson and McElroy. The opinion of the court was delivered by Joelson, J.A.D.
This appeal involves a libel action. Plaintiff, a professional jockey, filed a complaint based upon an article by defendant Kerrison in a daily newspaper, the New York Post. The complaint alleges that "defendant Murdoch is the publisher of . . . the New York Post, which is published by defendant, News Group Publications, Inc. [ sic ]. . . ." Defendants made a motion for summary judgment which was granted. This is plaintiff's appeal from the order granting summary judgment. We affirm.
Defendants' application for summary judgment was based upon the contention that plaintiff was a public figure and, therefore, was required to prove "actual malice" within the meaning of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In that case, the Court defined a statement made with actual malice as one made ". . . with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-280, 84 S. Ct. at 725-726. Although New York Times v. Sullivan dealt with a public official, the same test of actual malice was ultimately applied to a public figure. Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); Lawrence v. Bauer Pub. & Print., Ltd., 89 N.J. 451, 466 (1982).
There are two questions for us to resolve on this appeal. First, was plaintiff a public figure at the time of the publication of the article about which he complains? Second, if plaintiff was a public figure, was there a disputed question of fact as to actual malice so as to preclude summary judgment? We answer the first question "yes," and the second question "no."
In determining plaintiff's status as a public figure, the trial judge stated that plaintiff had been "a flat track jockey" since 1975 or 1976 and on September 25, 1981, had a mount at the Meadowlands racetrack. It was defendant Kerrison's derogatory article in the New York Post about plaintiff's handling of his horse in a race on that date which formed the basis of plaintiff's
libel action. It is not necessary for us here to repeat that article in full. Suffice it to say that the article charged in forceful and caustic terms that plaintiff deliberately tried to keep his horse from making its best effort. The article ended with a declaration that plaintiff "robbed" those persons who bet on the horse "as if he had plucked the money out of their wallets."
In his colloquy with plaintiff's counsel at the time of argument on the motion for summary judgment, the trial judge said that "there is no way in the world that a man could decide to become a jockey, put the silks on and ride before hundreds of thousands of people as he [plaintiff] has and not call himself a public figure." The judge also stated that "[m]any people on television see him run," and further mentioned "[t]he public interest in horseracing." Finally, the judge declared that plaintiff "voluntarily made himself publicly seen, publicly known, publicly printed." It is undisputed that it is the function of the trial judge, rather than the jury, to decide the question of whether a plaintiff in a libel action is a public figure. See Lawrence v. Bauer Pub. & Print., Ltd., supra, 89 N.J. at 462. We agree with the trial judge's view that plaintiff here was a public figure.
The trial court relied in large part on Gertz v. Welch, supra. That case distinguished between an individual of "pervasive fame or notoriety" who is a public figure in all contexts and an individual who "becomes a public figure for a limited range of issues." 418 U.S. at 351, 94 S. Ct. at 2997. In the matter now before us, the trial court stated that plaintiff was not a public figure "as far as private life is concerned," but "when he gets on the back of a horse, and he becomes a jockey, he certainly takes on all aspects of being a public figure." Thus, although the judge did not specifically so articulate it, he obviously found plaintiff to be a public figure for a limited range of issues within the Gertz dichotomy. Accordingly, adverse newspaper comment about plaintiff's performance in
his professional capacity as a jockey must be considered under the law of defamation relating to public figures. We are not here dealing with comments about plaintiff's activities outside of his professional life, which comments would not be privileged except in the case of a person of pervasive fame or notoriety.
In Time, Inc. v. Johnston, 448 F.2d 378 (4 Cir.1971), the court held that a retired professional basketball player was a public figure. There, the court quoted Cepeda v. Cowles Magazine & Broadcasting Co., 392 F.2d 417 (9 Cir.1968), cert. den. 393 U.S. 840, 89 S. Ct. 117, 21 L. Ed. 2d 110 (1968), a case involving a professional baseball player, in which the court stated that public figures are those persons involved in issues in which the public has a justified and important interest, and include athletes. Consistent with this definition, a college athletic director, Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094) (1967), a basketball coach, Grayson v. Curtis Publishing Co., 72 Wash. 2d 999, 436 P. 2d 756 (1968), and a professional boxer, Cohen v. Marx, 94 Cal.App. 2d 704, 211 P. 2d 320 (1950), have all been held to be public figures. We likewise find to be a public figure a professional jockey who chooses to perform publicly in a sport which commands widespread public interest, and regarding which the communications media regularly report. "Professional athletes, at least as to their playing careers, generally assume a position of public prominence." Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1280 (3 Cir.1979). We note the emphasis in plaintiff's reply brief on the question of plaintiff's access to the media to respond to allegations against ...