On appeal from Superior Court of New Jersey, Law Division, Passaic County.
J.h. Coleman and Bilder. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
The opinion of the court was delivered by
This is an appeal from summary judgment dismissing a complaint alleging defamation and other causes of action. The complaint is based on plaintiff's perceived communicative impact arising from the dissemination of student speech under the First Amendment in a school sponsored yearbook.
Plaintiff Sylvia Salek was employed as a teacher at defendant Passaic Collegiate School since 1976. Defendant Angela Gibson, plaintiff's sister, was the school principal. Defendant Paula Steele, who is Gibson's daughter, was the school yearbook supervisor for 1988.
The yearbook for 1988 contained a section entitled "The Funny Pages," consisting of pictures of students and faculty accompanied by purportedly humorous captions. One of the pages in this section contained a picture of plaintiff sitting next to and facing another teacher, John DeVita, who had his right hand raised to his forehead. The photograph is captioned "Not tonight Ms. Salek. I have a headache." This photograph forms the basis for this litigation. Another page in the yearbook contains a picture of DeVita eating with the caption "What are you really thinking about, Mr. DeVita?" It is assumed for purposes of this appeal that both of these photographs were contained in the yearbook distributed to the students.
Plaintiff contended below and in this appeal that the import of the two photographs with their captions was that "Mr. DeVita was declining to accept my proposition to engage in
sexual relationship with him." Plaintiff presented a report from Marilyn A. Lashner, Ph.D., an expert in news media analysis. Dr. Lashner concluded that the average reader of the yearbook would conclude that there was an ongoing sexual relationship between plaintiff and DeVita.
In this appeal, plaintiff contends essentially that factual issues were presented as to whether the photograph was defamatory. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75, 110 A.2d 24 (1954). The decision of whether the photograph was defamatory must be made after consideration of the context in which it appeared in the yearbook. See Decker v. Princeton Packet, Inc., 116 N.J. 418, 425, 561 A.2d 1122 (1989). In a defamation case in which the essential facts are not disputed, the summary judgment procedure is well suited. Kotlikoff v. The Community News, 89 N.J. 62, 67, 444 A.2d 1086 (1982).
We fully agree with Judge Alterman that the threshold questions of whether the published picture represented a false statement of alleged fact and whether the picture was reasonably susceptible of a defamatory meaning as to plaintiff, were issues of law to be decided by him. Romaine v. Kallinger, 109 N.J. 282, 290, 537 A.2d 284 (1988); Kotlikoff, supra; Karnell v. Campbell, 206 N.J. Super. 81, 88-89, 501 A.2d 1029 (App.Div.1985). There is no libel where, as here, the material is susceptible of only non-defamatory meaning and is clearly understood as being parody, satire, humor, or fantasy. Romaine, supra; Walko v. Kean College of New Jersey, 235 N.J. Super. 139, 146, 561 A.2d 680 (Law Div.1988); Restatement (Second) of Torts, § 566, comment d (1977); see also Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988) ...