On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1396-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sabatino, and J.N. Harris.
This is a putative civil rights and defamation action that arguably tests the free speech boundaries of Comm. for a Better Twin Rivers v. Twin Rivers Homeowners' Ass'n, 192 N.J. 344 (2007). Distilled to its essence, plaintiff's grievances arose from the conduct of an individual defendant - a private internet website administrator - who deleted plaintiff's letter of resignation from a website. Plaintiff had hoped to digitally distribute this letter to his neighbors through the website, www.mysocietyhill.com. Adding insult to injury, the webmaster also suspended plaintiff's ability to post messages on the website's message boards and forums. Plaintiff argued that the illicit animating force behind the webmaster's censorious conduct (and denial of access to the community website) was the unseemly influence of defendants' condominium association and three individual members of its board of directors.
Plaintiff filed a two-count complaint in the Law Division. He sought to vindicate what he believed was a violation of his free speech rights guaranteed by our national*fn1 and state constitutions and to obtain remedies for an alleged defamatory statement that accused plaintiff's letter of being defamatory. On separate occasions, once early in the litigation and then after substantial discovery was completed, plaintiff's claims were dismissed with prejudice. Still aggrieved, plaintiff appealed.
We find that the determinations of Judge Edward T. O'Connor, Jr. (on the motion to dismiss the defamation count for failure to state a claim upon which relief may be granted) and Judge John A. O'Shaughnessy (on the motion for summary judgment to dismiss the civil rights claim) were sound and consistent with existing law. Consequently, we affirm.
Defendant Society Hill at Droyers Point Condominium Association (Association) is a non-profit corporation organized to manage, maintain, and repair the common elements of a condominium development sited at Droyers Point, Jersey City. The development is a gated community consisting of more than 300 townhome-style condominium units. It is located on the waterfront where the Hackensack River joins the Passaic River to form the Newark Bay, on the former site of Jersey City's Roosevelt Stadium. Owners of condominium units in the development are members of the Association.
Plaintiff Xavier Baskerville owned a dwelling unit within the condominium complex. In February 2007, he served as the secretary and as a member of the Board of Directors (Board) of the Association. Defendants Nathan Minnick, George Peterson, and Subrat Nayak contemporaneously served as members of the Board. Defendants Irwin Boutboul and Matthew Cribbs were the website co-administrators of www.mysocietyhill.com.
The limited record does not authoritatively indicate the exact nature of the website and the degree of control or legal ownership exercised by the Association or its Board over the website. Boutboul testified in a deposition that he created the website and therefore considered himself its owner. He stated that the Association had neither an ownership interest in the website, nor control over who could obtain access to use it.
The website was created, according to Boutboul, "for people to communicate between each other" and to "share advice and things like that." The purpose of the website was to "make it easier for residents to communicate with each other, to share services, share advice, complain about things, everything, like a forum. It's a communication." It was also an outlet in which to express opinions about the condominium community; people who were granted access to the website "can express whatever they want."
Boutboul testified that as the owner of the website, he was also its gatekeeper: "It's limited to whoever I want because I'm the owner of the website so I give access to whoever I want and usually I restrict access to people from Society Hill I, II, and III." However, Boutboul noted that he gave moderating rights to some Board members*fn2 - Minnick, Peterson, and Baskerville - which meant that "[t]hey have the ability to moderate a forum." As moderators, they had the ability to remove messages posted on the website "when they feel like it". This included the authority to remove any messages posted on the website that were critical of the way the Board fulfilled its duties. Nevertheless, there were no written or oral agreements between the webmasters and the Association or the Board with respect to the website and its operational minutiae.
Notwithstanding that "anyone can post anything" on the website and "[t]here's no restriction on this," Boutboul revealed that the website has a standard internet online forum policy that "basically  says that you use [it] in a considerate manner and the administrator has the ability to remove and deny and revoke access as they feel like without obligation to give you access any further." Moreover, Boutboul stated "some moderators" can remove posted messages, and "it's up to the moderator to deem what's appropriate or not and it's totally free will."
Minnick was President of the Board in February 2007. His deposition testimony reiterated that the Association did not own www.mysocietyhill.com. He did not know who owned the website, but assumed that it was Boutboul or Cribbs. Minnick stressed that the website "was a private site" and "was not a board-solicited or sponsored web site." He claimed during his deposition that the Board "had the ability to send stuff to them to be posted. It was up to them if they chose to post it or not." Minnick noted that neither the Board, nor any members of the Board had the right 1) to remove items from the website 2) to tell the website to remove a message from the website, or 3) to tell the website not to post a message. Minnick's last assertion contradicted Boutboul's view of the powers of Board members with moderating rights.
Around Valentine's Day, 2007, Jersey City experienced a severe snowstorm that blanketed the city including the condominium development. The weather event caused great turmoil and distress within the condominium complex due to what was perceived to be an inappropriate cleanup response. Accusations of mismanagement and incompetence flew against the Association, the Association's management company, and the snow removal contractor.
Baskerville became disillusioned with the Board's public statements concerning the snow cleanup. He subsequently decided to resign from the Board as of February 15, 2007. To do so, he wrote a brief letter of resignation addressed to the Board and emailed it to Minnick,*fn3 Peters, and Nayak at 2:29 p.m. on that day.
The following day, Baskerville drafted a more formal, lengthy letter of resignation and forwarded it by email to the Association's attorney and its management representative, asking, "[p]lease review my resignation letter and advise if there are any problems with submitting this letter." Later in the day, around 1:48 p.m., he again emailed Minnick, Peters, and Nayak and attached his "official letter of resignation to the Board" and mentioned, "[t]his letter will also be posted on the website and emailed to the residents who are registered at the website." Immediately thereafter, he sent an email to Boutboul that requested the webmaster post the letter of resignation on www.mysocietyhill.com and "email it to the residents as well."
In the formal resignation letter, Baskerville disputed that the Board had done all it could to resolve the snow removal issues. He wrote:
I am completely frustrated with this Board's lack of leadership, action and basic common sense. The events surrounding the snow removal debacle of February 14th, 2006 (sic) are a clear indication that this Board is not competent or capable of guiding this community and are systemic of how this Board operates.
Less than two hours after Baskerville emailed Boutboul, Cribbs responded to Baskerville with the following message:
Xavier, I'm sorry, but since the website news postings serve as an official channel of communication for the board, I think we would have to have the current board review ...