Before Judges Havey, Keefe and A.A. Rodr¡guez.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Burlington County.
In this defamation case, the issue is whether the presumption of damage to reputation as provided under the slander per se doctrine should apply when the defamation occurs during a political radio commercial.
Defendant Rosanio, Bailets & Talamo, Inc. (RB&T) was the campaign media consultant for defendant William J. Simon during his 1994 campaign for Sheriff of Camden County. Simon, the Republican candidate, ran a commercial accusing plaintiff Michael McLaughlin, the Democratic candidate, of having leaked confidential information to the Scarfo crime family when plaintiff was a member of the State Police. The commercial referred to an interview that plaintiff, while still a State Police detective, had granted to a reporter, resulting in a newspaper story that revealed confidential information about the State Police investigation of Scarfo.
Plaintiff filed a complaint in the Law Division alleging that defendants had defamed him in the radio commercial. Simon and RB&T moved for summary judgment, alleging that the claimed defamatory statement was protected political speech that was not uttered with "actual malice," and that it had not caused any actual damage to plaintiff's reputation. *fn1 Plaintiff cross-moved for partial summary judgment. The motion judge determined that: (1) the radio ad was "slander per se" and thus plaintiff need not prove actual damages; and (2) whether defendants were motivated by "actual malice" in defaming plaintiff, a public figure, was a disputed question of fact that must be decided by a jury. Accordingly, the judge denied defendants' motion and granted partial summary judgment to plaintiff on the question of whether the statement constituted slander per se.
A jury trial resulted in a verdict in favor of plaintiff. In response to special verdict interrogatories, the jury concluded that:
(1) the challenged statement was "substantially false"; (2) both Simon and RB&T made the statement "with actual knowledge that it was false or with a reckless disregard of whether it was true or false when it was communicated"; (3) Simon's fault was sixty percent and RB&T's was forty percent; (4) plaintiff's damage to his reputation, including any emotional distress, totaled $40,000; and (5) plaintiff was entitled to punitive damages against both defendants. Trial continued on the amount of punitive damages. The jury returned a verdict assessing $250,000 in punitive damages against each defendant.
We reverse. To succeed in an action for slander, plaintiff must prove that the defamatory statement caused "actual harm to reputation through the production of concrete proof." Ward v. Zelikovsky, 136 N.J. 516, 540 (1994). This damage element of a prima facie case of defamation is waived if the statement is slander per se, because damage to reputation is presumed to flow from such statements. Ibid. We decline to apply the slander per se doctrine to the statement involved here. The doctrine has been "severely criticized" as allowing compensation when there is no injury. Biondi v. Nassimos, 300 N.J. Super. 148, 154-55 (App. Div. 1997). Thus, it should not be expanded to cover a statement, such as the one here, which should be categorized as libel, rather than slander. Consequently, the motion for summary judgment should have been granted on the ground that plaintiff failed to establish any reputational injury or other special damages.
The facts are not in dispute. In 1985, the New Jersey State Police was investigating the organized-crime activities of Nicodemo Scarfo, culminating in indictments of Scarfo and others. At that time plaintiff was the head of the State Police's Bellmawr Intelligence Unit, which conducted electronic surveillance of the Ocean City home of Thomas DelGiorno, a suspected member of Scarfo's crime family who was subsequently indicted. The surveillance revealed that DelGiorno had "fallen out of favor with Scarfo and it was felt that he might be the target of a mob murder."
In November 1986, plaintiff arrested DelGiorno and attempted to solicit his help in gathering evidence against other members of the crime family; DelGiorno agreed to cooperate. The State Police assigned plaintiff to arrange protective custody for DelGiorno and his family.
In spite of efforts to keep DelGiorno's cooperation a secret, on December 7, 1986, the Courier-Post published a front-page article by reporter Dennis M. Culnan disclosing DelGiorno's cooperation with state prosecutors. The article, citing unnamed sources characterized as "close to the investigation," and "familiar with the debriefing of DelGiorno," reported that DelGiorno had tied Scarfo to sixteen murders, some involving DelGiorno, and that DelGiorno and his family were being guarded by State Police in a "secret location."
State Police officials were troubled that Culnan's article could jeopardize the investigation and place several people in danger. They suspected that the leak came from one of five named officers, one of whom was plaintiff. Accordingly, Superintendent Pagano ordered an internal investigation, during which the five suspects and many other witnesses were interviewed. In a report issued in March 1987, the State Police found that plaintiff had been the one who improperly disclosed the information to Culnan, and that he had misrepresented that fact during the internal investigation.
Based on the foregoing report, in April 1987, disciplinary charges were filed against plaintiff. Specifically, plaintiff was charged with violating State Police rules and regulations by knowingly making false and misleading official statements concerning the content and duration of his telephone conversation with Culnan, and disclosing information "not generally available" to the public, acquired by plaintiff in the course of his official duties. Plaintiff entered a guilty plea to both charges and was suspended for a four-month period.
In March 1994, plaintiff agreed to run for Camden County Sheriff on the Democratic ticket. He began campaigning in April 1994, the day after he retired from the State Police. During the campaign defendant William J. Simon, the incumbent, learned about the 1987 disciplinary charges against plaintiff from "material addressed to [his] home anonymously."
Based on the information contained in the anonymous package, the Simon campaign prepared a radio commercial that aired on five stations in October 1994. The script of the commercial, as printed in a later news story about the controversy, read as follows:
Voice No. 1: Order . . . order in the court.
Voice No. 2: We find the defendant, Michael W. McLaughlin, guilty . . . On the second count we find the defendant Michael W. McLaughlin guilty and I order him immediately suspended from the N.J. State Police.
Voice No. 3: Michael McLaughlin is the Democratic candidate for Camden County Sheriff . . . He wants you to trust him to be the highest-ranking law enforcement official in Camden County. But how far can you trust a man who breaks the rules of the New Jersey State Police . . . And then tries to cover it up? When he was a State Trooper, Mike McLaughlin jeopardized an organized crime investigation by leaking confidential ...