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Fortenbaugh v. New Jersey Press Inc.

January 22, 1999

WILLIAM W. FORTENBAUGH, PLAINTIFF-APPELLANT,
v.
NEW JERSEY PRESS, INC., AND MORTON R. RABINOWITZ, DEFENDANTS-RESPONDENTS.



Before Judges King, Wallace and Newman.

The opinion of the court was delivered by: King, P.j.a.d.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 5, 1998

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

I.

In an "op-ed" column in the "Homes News & Tribune" Morton R. Rabinowitz stated that in an unidentified court proceeding documents revealed plaintiff, William P. Fortenbaugh, a Rutgers professor, had been accused of masturbating at a faculty meeting. Fortenbaugh brought this suit for defamation. He conceded that he had been so accused but he denied that the accusation was true. He claimed the op-ed article was an unfair report.

The Law Division Judge granted summary judgment to defendants, the op-ed author, Rabinowitz, and the publisher of the "Home News & Tribune," New Jersey Press, Inc. The Judge found that the alleged defamation (1) was protected by the privilege of fair reporting of judicial proceedings, and was (2) true ---- that plaintiff had been accused of masturbating.

We reverse on both grounds and remand for further proceedings. We conclude (1) that the privilege did not apply because the op-ed article was not a fair or accurate account of a judicial proceeding and (2) the defense of truth did not apply because the relevant "truth" was the underlying conduct ---- whether plaintiff actually masturbated at the faculty meeting ---- not whether he was accused of doing so.

II.

On February 15, 1996 the "Home News & Tribune" published a "COMMENTARY" by Rabinowitz, who was not an employee of the newspaper, and was identified in the article only as a "resident of North Brunswick." Bearing the headline, "RU SWEEPS HARASSMENT UNDER THE RUG," Rabinowitz's article purported to comment on the newspaper's earlier report that Professor Fortenbaugh had been reprimanded and ordered to undergo counseling after "numerous complaints of sexual harassment were sustained against him."

In the part of the article alleged as defamatory, Rabinowitz wrote:

"Reprimand notwithstanding, Fortenbaugh's conduct apparently continued. As revealed in recently unsealed court papers, this fact was brought to the attention of the Rutgers administration when his department chairman reported that the professor had allegedly masturbated during a faculty meeting. No sanctions were imposed for this offense."

Rabinowitz's article described other incidents involving plaintiff and other Rutgers faculty, all of which he claimed were handled improperly by the University.

In his deposition in this action Rabinowitz revealed that the article had originated as a letter to the editor originally written by Joseph San Filippo, a Rutgers professor who had been fired for misconduct and who had filed an unsuccessful wrongful discharge suit against Rutgers. Rabinowitz submitted the letter under his own name because San Filippo "felt that if he signed the letter, they wouldn't print it." Rabinowitz said he did not know that the letter would be published in the format of an "op ed column," rather than as a letter to the editor.

Rabinowitz also testified by deposition that he had satisfied himself that the facts concerning plaintiff were true by examining some "court records" which San Filippo showed him from his unsuccessful suit against Rutgers. One of those "records" was the deposition of Jean Ambrose, Assistant Vice President for Faculty Affairs, who said that she had heard the rumor that a professor, designated in the San Filippo case as Professor LFF or FF, once had masturbated in front of other faculty members. Rabinowitz had also examined the deposition, in the San Filippo case, of Elizabeth Mitchell, another Rutgers administrator, who testified that a department chairperson had reported to her that a "tenured faculty member had masturbated in front of his faculty colleagues at a faculty meeting."

Rabinowitz had also seen a March 29, 1994 letter, produced as an exhibit in the San Filippo matter, in which Rutgers responded to a sexual harassment claim against a professor, designated at the top of the letter by the code letters FF. While the name of the accused professor was blocked out several times, in one instance, it was not; this oversight revealed that plaintiff was the professor under sexual harassment suspicion. Plaintiff properly observes this was caused by "careless redacting."

The harassment claim discussed in the letter bore absolutely no relationship to the alleged masturbation incident. Rabinowitz had deduced that plaintiff was the FF referenced by Jean Ambrose because that was the code designation which appeared at the top of the March 29, 1994 letter, in which plaintiff was identified by name, albeit accidentally.

In their depositions for the present case, both Mitchell and Ambrose testified that plaintiff was the subject of the masturbation accusation. At oral argument plaintiff's counsel conceded this point, while denying that the accusation was true. Elizabeth Mitchell testified she believed that the masturbation incident allegedly occurred in the mid-1980's.

III.

In November 1996 plaintiff filed this complaint seeking damages for the allegedly libelous "op-ed" article which reported he had been accused of masturbating during a faculty meeting. In addition to two counts in defamation, the complaint stated counts for negligence and intentional infliction of emotional harm. The original defendants were the owner and publisher of the newspaper (Asbury Park Press), the author of the article (Rabinowitz), and the unidentified department head who first uttered the accusation against plaintiff (John or Jane Doe). The named defendants filed ...


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