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Orso v. Goldberg

October 18, 1995

JOHN A. ORSO, THOMAS R. TESSARO AND SALVATORE CARERI, PLAINTIFFS-RESPONDENTS,
v.
LAURENCE GOLDBERG, DEFENDANT, AND THE BERGEN RECORD CORPORATION, GLENN RITT AND JEFF PILLETS, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication October 18, 1995.

Before Judges Shebell, Stern and Wallace. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by SHEBELL, P.J.A.D.

Plaintiffs, Fort Lee Police Chief John A. Orso, Fort Lee Deputy Police Chief Thomas R. Tessaro, and Fort Lee Deputy Police Chief Salvatore Careri, filed a three count complaint based on defamation against defendants, Fort Lee City Council member Laurence Goldberg, The Bergen Record Corporation, a daily newspaper, its Publisher Glenn Ritt, and its Staff Writer Jeff Pillets on October 18, 1994.

Count One charged Goldberg with making false statements and accusations of criminal conduct against plaintiffs and other officers of the Fort Lee Police Department over a two year period. Count Two alleged that The Bergen Record published an article on June9, 1994 which repeated Goldberg's defamatory statements and accusations. The count further alleged:

The statements and comments in the article concerning criminal conduct and improprieties on behalf of the plaintiffs, that plaintiffs were the subject of criminal investigations and that plaintiffs would be indicted were and are defamatory and false and were made with knowledge of their falsity or reckless disregard of their truth or falsity.

In Count Three, plaintiffs allege that the defendants' false, slanderous and libelous statements placed them in a false light before the general public and invaded their privacy.

On November 21, 1994, prior to filing an answer, The Bergen Record Corporation, Glenn Ritt and Jeff Pillets moved to dismiss the complaint as it pertained to them. On January 20, 1995, the Law Division Judge heard argument on appellants' motion. On February 10, 1995, the Judge issued a letter opinion denying the motion. This appeal, on leave granted by us, is from the February 23, 1995 order denying dismissal.

The Judge found that the language of the newspaper article taken in context and considered as a whole was reasonably susceptible of a defamatory meaning since it tended to diminish plaintiffs' standing in the community. See Lawrence v. Bauer, 89 N.J. 451, 459, 446 A.2d 469 (1982). Appellants and Amicus Curiae, N.J. Press Association, maintain that although the statements were defamatory, the article still was validly published and appellants must be protected from a defamation action.

The Law Division Judge in denying appellants' motion to dismiss noted that the fair report privilege covers the media when reporting judicial, legislative and other "public proceedings," but that "in this case Mr. Goldberg's statements were in part obtained at a private interview as distinguished from statement made at a public proceeding," citing Costello v. Ocean County Observer, 136 N.J. 594, 643 A.2d 1012 (1994).

We find that the qualified privilege of the media to fairly report defamatory words or statements uttered by a public official and to report on matters of public interest affecting government and its officials provides ample cause on the facts of this case to warrant summary judgment. We, therefore, reverse and remand for entry of an order of dismissal of the claims against appellants.

Privileges that restrict recovery for defamation reflect the "paramount public interest [in] permitting persons to speak or write freely without being restrained by the possibility of a defamation action." Swede v. Passaic Daily News, 30 N.J. 320, 331, 153 A.2d 36 (1959). In "narrowly defined instances," where the public interest in unrestrained communication outweighs the reputation interests of individuals, a privilege will work to defeat the right of redress. Fees v. Trow, 105 N.J. 330, 336, 521 A.2d 824 (1987); see Erickson v. Marsh & McLennan Co., 117 N.J. 539, 564, 569 A.2d 793 (1990).

Clearly those statements made by Councilmember Goldberg during a public proceeding were protected by a qualified privilege. Swede, supra, 30 N.J. at 332-34. "The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence is reported." Restatement (Second) of Torts, § 611; and see Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 379, 149 A.2d 193 (1959) (adopting analogous rule in original Restatement); accord Reilly v. Gillen, 176 N.J. Super. 321, 328, 423 A.2d 311 (App. Div. 1980) (relying on the Restatement language to explain the fair-report privilege).

This doctrine, which has come to be known as the "fair report privilege," see Medico v. Time, Inc., 643 F.2d 134 (3d Cir.), cert. den. 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116 (1981), developed as an exception to the common law rule that a person who republishes a defamation uttered by another was subject to liability as if he or she were the original defamer. Id. at 137. The common law "fiction" that a republisher adopted the defamatory matter created special problems for the press. Ibid. When a newspaper republished a newsworthy account of one person's defamation of another, by virtue of the common law rule, it was charged with publication of the underlying defamation. Id.

The fair-report privilege, if not an absolute privilege, is much broader than many other conditional privileges. The privilege will be held to protect the media publisher even though the publisher does not personally believe the defamatory words he reports to be true and even when he knows them to be false. Molnar v. Star-Ledger, 193 N.J. Super. 12, 21, 471 A.2d 1209 (App. Div. 1984); Restatement (Second) of Torts, § 600, comment a. In Molnar, we found privileged the republication of a defamatory statement of a deputy fire chief, made during an interview, in regard to a fire investigation. Id. at 12. We stated that:

The qualified privilege to report defamatory words or statements uttered by a public official with respect to matters within the scope of his official responsibility is analogous to the privilege afforded the news media with respect to full, fair and ...


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