Decided: January 14, 1985.
DAIRY STORES, INC., T/A KRAUSZER'S FOOD STORES, PLAINTIFF-APPELLANT,
SENTINEL PUBLISHING CO., INC., PATERSON CLINICAL LABORATORY, INC. AND KATHLEEN DZIELAK, DEFENDANTS-RESPONDENTS
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, whose opinion is reported at 191 N.J. Super. 202.
King, Deighan and Bilder.
[198 NJSuper Page 20]
This is an appeal from a summary judgment dismissing a defamation suit brought against a paper, a reporter and a chemical laboratory which was consulted by the reporter and became a source for a story alleging that bottled "spring water" was not in fact pure spring water. We affirm substantially for the reasons expressed by Judge Skillman in his written opinion reported at 191 N.J. Super. 202 (Law Div.1983).
Although we recognize that the United States Supreme Court disclaimed deciding the issue, we believe Bose Corp. v. Consumers Union of U.S., Inc., U.S. , 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984) implicitly extends the New York Times v. Sullivan requirement of "actual malice" to product disparagement.*fn1
The Court of Appeals entertained some doubt concerning the ruling that the New York Times rule should be applied to a claim of product disparagement based on a critical review of a loudspeaker system. We express no view on that ruling, but having accepted it for purposes of deciding this case, we agree with the Court of Appeals that the difference between hearing violin sounds move around the room and hearing them wander back and forth fits easily within the breathing space that gives life to the First Amendment. Id. 104 S. Ct. at 1966, 80 L. Ed. 2d at 525. [Emphasis supplied].