November 16, 2009
XAVIER BASKERVILLE, PLAINTIFF-APPELLANT,
SOCIETY HILL AT DROYERS POINT CONDOMINIUM ASSOCIATION, NATHAN MINNICK, GEORGE PETERS, SUBRAT NAYAK, MATTHEW CRIBBS, AND IRWIN BOUTBOUL, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2009
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 this before we could post it as a news item.
You do however have a user account which you could use to post this and I think it's important enough to justify making the thread sticky.
Matt Twenty minutes later, Baskerville messaged back to Cribbs:
Matt: I posted a new thread, how do I make it sticky?
Xavier Six minutes after that, Cribbs emailed to Baskerville:
I just did that for you. You might also want to post a direct link to your thread in the comments section of the news posting. . .
By this time, late in the afternoon of February 16, 2007, Baskerville believed that his formal resignation message was posted and available for viewing on www.mysocietyhill.com by the Droyers Point community, meaning the authorized users of the website. This was not so. Around 6:00 p.m., Baskerville dashed off the following email to Cribbs:
Matt: I just went to the website and my thread has been deleted. Do you know why?
Xavier Cribbs's response triggered this lawsuit. Because of its significance to this appeal, we provide the email in full:
Xavier, I removed your post from the mysocietyhill.com website at the request of the board. John Kwasnik Esq., the association[']s attorney, in collaboration with Access Property Management, feel it necessary to restrict access and website privileges until the two parties are able to come to an agreement regarding the slander and libel comments being made toward the board.
I do not like to take this action and I do not feel it reflects positively on anyone, but I would like to explain my reasons to you.
We have been working for over a year to get a website established as one of the primary vehicles of communication for residents of Droyers Point. I believe that board and association support is a critical component of making such a website viable. Without that support I don't believe the website would ever amount to more than a place for residents to gossip. However, I also believe that open and honest communication between all parties is critical for the success of the website and the health of the community. I do know that removing your post harms that openness.
I was faced with two choices, neither of which were good. Remove your post and reduce the ability to trust the website or leave your post and reduce the willingness of the board and association to use it (or in the worst case, even allow such a forum to exist). I choose to remove your post, only after discussion with Scott Daley and the understanding that it would be a temporary situation until all parties, including you, can come to agreement on public messages. I hope that this is the course of action which will be the best for the community and the website in the long term.
I will continue to be in contact with all parties involved to ensure that the promises to me are kept and a mutually acceptable resolution is reached.
One other thing to note, although I was the one who removed the post, all board members have the privileges to do so as well. So even if I would have refused, they would have done it anyway.
Please keep me informed as much as you can. You earned my respect during the time we worked together and you are still my neighbor. I'm trying to do what I think will be best for the community and I hope you can respect my reasoning.
Thanks, Matt To add fuel to the fire, Cribbs shut off Baskerville's access to the website at the request of the Board.
Baskerville did not idly sit by. On March 18, 2007, he filed a complaint in the Law Division that accused the defendants of violating his civil rights and for defaming him. The complaint specifically marked out each defendant's separate conduct, but ascribed vicarious liability to all defendants for the conduct of the others.
The first count charged all defendants with unlawful censorship and deprivation of the plaintiff's civil right of free speech under the United States and New Jersey Constitutions. The complaint was silent as to the theoretical framework for this claim. It is unclear whether Baskerville sought freestanding remedies pursuant to constitutional principles, pursuant to a statute such as the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, or pursuant to both. It is uncertain whether the theoretical underpinnings for vicarious liability were based upon the law of conspiracy, principal and agent, or aiding and abetting.
The second count of the complaint charged all of the defendants with libel, slander, defamation, and infliction of emotional distress. As for the Association, Minnick, Peters, and Nayak, the pleading charges them as having "falsely claimed that the plaintiff's letter of resignation contained slanderous and libelous comments about the Board." The second count adds that Minnick and Peters "further defamed plaintiff by telling defendants, Matthew Cribbs and Irwin Boutboul not to allow plaintiff's letter of resignation to be posted on the community website." As for Cribbs and Boutboul, the pleading says only that they "wrongfully and without justification refused to post the plaintiff's letter of resignation on the community website." Lastly, Baskerville avers, "[a]s a further result of defendants['] actions, plaintiff suffered severe emotional stress and anxiety."
In lieu of an answer, on July 11, 2007, all defendants filed a motion to dismiss the entire complaint for failure to state a claim upon which relief can be granted. On September 7, 2007, Judge O'Connor dismissed the defamation count with prejudice, but denied the defendants' motion to dismiss the civil rights count. The motion judge was particularly concerned that Baskerville's defamation claims were "vague conclusory allegations and [do] not plead the facts sufficient to identify the words, the speaker of the words, and the publication requirements of a defamation action."
On September 20, 2007, the defendants filed an answer and the parties engaged in routine discovery. More than a year later, on November 20, 2008, defendants filed a motion for summary judgment regarding the remaining first count. On December 19, 2008, Judge O'Shaughnessy granted the motion and dismissed the complaint with prejudice. The court engaged in a comprehensive review of the record by peering through the lens of the newly-minted Twin Rivers doctrine,*fn4 and concluded, "this Court has no doubt that Plaintiff's constitutional rights have not, I repeat, have not been violated." The order that memorialized Judge O'Shaughnessy's decision was entered on December 19, 2008, but not filed until December 24, 2008.
On February 2, 2009, Baskerville filled a notice of appeal.
Because Judge O'Shaughnessy addressed the question of the defendants' civil rights liability in the context of deciding their motion for summary judgment, we will first express the germane standard of review. A motion for summary judgment shall be granted, "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). A reviewing court must determine whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
On appeal from a summary judgment decision, we apply the same standard that governed the trial judge. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008). On matters dealing exclusively with a legal question, our review is de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
As the opponent of defendants' summary judgment motion, plaintiff was entitled to the motion judge's awareness that all competent evidentiary materials benefiting plaintiff were true and plaintiff was entitled to the advantage of all reasonable inferences flowing therefrom. Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 540.
The material facts were not in dispute. Notwithstanding Baskerville's claim that there were contradictions in the deposition testimony between Minnick and Boutboul regarding who initiated the removal of Baskerville's letter from the website, the motion judge, as do we, assumed that the efficient producing cause of the letter's removal was at the behest of the Board. Thus, even if there were a dispute in this inconsequential detail, it is not material to the summary judgment calculus.
Judge O'Connor did not dismiss the defamation claim pursuant to summary judgment jurisprudence. Rather, before defendants filed their answer, he parsed Baskerville's complaint to see if failed "to state a claim upon which relief can be granted." R. 4:6-2(e). Our review of the order granting defendants' motion to dismiss plaintiff's second count is governed by the same standard applicable in the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). We therefore must accept as true the facts alleged in the complaint to determine whether, when indulgently viewed, they set forth a claim against defendants upon which relief can be granted. Printing Mart-Morristown v. Sharp Elec., Corp., 116 N.J. 739, 746 (1989). This requires a searching scrutiny of the complaint, made with liberality, as even a glimmer of a viable cause of action compels denial of the application. Ibid. It is a process "at once painstaking and undertaken with a generous and hospitable approach." Ibid. "We pass no judgment on the truth of the facts alleged; we accept them as fact only for the purpose of reviewing the motion to dismiss." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).
Because defamation litigation commends itself to early judicial intervention to decide appropriate questions of law, the defendants' motions were ripe for determination at an early stage in this litigation. Kotlikoff v. The Cmty. News, 89 N.J. 62 (1982); Darakjian v. Hanna, 366 N.J. Super. 238 (App. Div. 2004). Although it is common for inelegant, incomplete, or vague complaints to be dismissed without prejudice, subject to a timely re-pleading, that did not occur here. Nevertheless, in light of our overall review of this matter, we are thoroughly convinced that the defamation claim was correctly dismissed.
The free speech clause of the New Jersey Constitution provides, "[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." N.J. Const. art. I, ¶ 6. Because New Jersey courts "ordinarily interpret our State Constitution's free speech clause to be no more restrictive than the federal free speech clause, . . . '[w]e rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution.'" Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (quoting Karins v. City of Atlantic City, 152 N.J. 532, 547 (1998)). Two exceptions exist to this general rule: 1) political expressions at privately owned and operated shopping malls, Coalition, supra, 138 N.J. at 326, and 2) defamation, Sisler v. Gannett Co., 104 N.J. 256, 271 (1986). See also Twin Rivers, supra, 192 N.J. at 355 (2007) (noting that New Jersey's broad guarantee of free speech may be enforced "under limited circumstances . . . against private entities" even in the absence of state action); Green Party v. Hartz Mountain Ind., 164 N.J. 127, 145 (2000) (trumpeting New Jersey's free speech provision as an affirmative right, broader than practically all others in the nation); State v. Schmid, supra, 84 N.J. at 535.
Twin Rivers addressed the approach required to ascertain the contours of the right of free speech upon privately owned property and the extent to which such property reasonably can be restricted to accommodate those rights. The Court declared its allegiance to the Schmid/Coalition standards:
We conclude that the three-pronged test in Schmid and the general balancing of expressional rights and private property interests in Coalition are the appropriate standards to decide this case. [Twin Rivers, supra, 192 N.J. at 365.]
We will do the same.
The Schmid test takes into account (1) the nature, purposes, and primary use of such private property, generally, its "normal" use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property. [Schmid, supra, 84 N.J. at 563.]
The first Schmid factor requires us to consider the nature, purposes, and primary use of the property. Society Hill at Droyers Point - unlike the planned unit development in Twin Rivers that consisted of privately-owned condominium duplexes, townhouses, single-family homes, apartments, and commercial buildings - is solely a condominium regime devoted entirely to residential townhome use.
The website, to the extent that it is the focus of the first Schmid factor, is private intangible property owned by an individual, not the Association. Its focus is upon the community located at Droyers Point and not on the public at large. Its audience is self-limiting and narrow. Although some Board members enjoyed moderator rights that allowed them to adjust information posted on the website, the individual co-administrators maintained the unilateral authority to change that accessibility at will.
We conclude that the limited nature of the public's use of both the real property located at Droyers Point and the intangible property of www.mysocietyhill.com does not support a finding that the defendants' conduct violated Baskerville's constitutional rights.
The second Schmid factor requires examination of the extent and nature of the public's invitation to use the property. Here the Association has not invited the public to use the common elements of the condominium complex. The affiliated webmasters have likewise not proffered their website to all internet users. The tangible and intangible property involved is unmistakably protected from access by outsiders. There is not a hint of an implied invitation for the public to use either species of property, except by those residents who share the parties' community of interests. We conclude that the limited access to the physical site and to the website do not favor a finding that the defendants' conduct violated Baskerville's constitutional rights.
The third Schmid factor concerns the purpose of the expressional activity in relation to both the private and public use of the property. This prong of the test requires that we examine "the compatibility of the free speech sought to be exercised with the uses of the property." Coalition, supra, 138 N.J. at 361. Essentially, we look at the fairness of the restrictions imposed by the defendants in relation to Baskerville's free speech rights.
We find that Baskerville's expressional activities were not unreasonably restricted, even though his formal letter of resignation was removed and he was thereafter denied access to the website. This is so because of the many alternate means of communication that were available to him within the Association's borders. Leafleting, mailing, and canvassing door- to-door, in order to speak directly to his neighbors, all readily come to mind as viable ways that Baskerville could have expressed his protest against the Board's alleged incompetence and heavy-handedness. The website did not enjoy a monopoly on expressive rights, even though it may have been the most timely and cost-effective means of distributing Baskerville's message.*fn5
We further conclude that this factor does not weigh in favor of finding that the defendants' conduct violated Baskerville's constitutional rights.
The result of the balancing of the expressional rights and the privacy interests is palpable. "We do not interfere lightly with private property rights." Coalition, supra, 138 N.J. at 371. Although at first blush, removing Baskerville's resignation manifesto and denying him further access to the website may appear draconian, none of the defendants was governmental, quasi-governmental, or public actors. Neither individually nor taken together is the Twin Rivers protocol satisfied in favor of concluding that a constitutional right was infringed here. Accordingly, we decide that in balancing Baskerville's expressional rights against the private property interests of the Association, individual members of the Board, and the webmasters, none of the defendants' conduct violated the free speech clause of the New Jersey Constitution. Thus, granting summary judgment and dismissing the first count of the complaint were correct.
The threshold issue in any defamation action is whether the language used is reasonably susceptible of a defamatory meaning. Cipriani Builders, Inc. v. Madden, 389 N.J. Super. 154, 176 (App. Div. 2006) (quoting Kotlikoff v. The Cmty. News, 89 N.J. 62, 67 (1982)). Whether a statement is susceptible of a defamatory meaning is a question of law for the court. DeAngelis v. Hill, 180 N.J. 1, 14 (2004).
"As a general rule, a statement is defamatory if it is false, communicated to a third person, and tends to lower the subject's reputation in the estimation of the community or to deter third persons from associating with him." Lynch v. New Jersey Educ. Ass'n, 161 N.J. 152, 164-65 (citing Restatement (Second) of Torts §§ 558, 559 (1977)). In determining whether statements are defamatory, courts must consider the content, verifiability, and context of the challenged statements. Ward v. Zelikovsky, 136 N.J. 516, 529 (1994). In considering the content of a statement, the court should then consider both the statement's literal meaning and "the fair and natural meaning that reasonable people of ordinary intelligence would give to it." Lynch v. New Jersey Educ. Ass'n, supra, 161 N.J. at 167. Verifiability refers to whether the statement can be proven true or false. Ibid. "Absent a settled meaning, the truth or falsity of an insult is not susceptible to such proof." Ibid.
A defamation claim cannot lie for an expression of pure opinion on a matter of public concern. Kotlikoff v. The Cmty. News, supra, 89 N.J. at 69. An opinion is "pure" when "the maker of the comment states the facts on which he bases his opinion of the plaintiff and then states a view as to the plaintiff's conduct, qualifications or character." Id. at 68-69. A "mixed" opinion is one that is "apparently based on facts about the plaintiff or his conduct that have neither been stated by the defendant nor assumed to exist by the parties to the communication." Id. at 69. The Court determined that a "mixed" expression could be defamatory if the statement implies underlying objective facts that turn out to be false. Ibid. However, with "pure" expressions of opinion, "where an opinion is accompanied by its underlying nondefamatory factual basis ... a defamation action premised upon the opinion will fail, no matter how unjustified, unreasonable or derogatory the opinion might be. This is so because readers can interpret the factual statements and decide for themselves whether the writer's opinion was justified." Id. at 72-73.
The defects in Baskerville's defamation claim are manifest in the aggregate. First, the supposed statement that is defamatory, that defendants "falsely claimed that the plaintiff's letter of resignation contained slanderous and libelous comments about the Board" is not precise as to date, time, and place. It neither specifically identified the words of the actual statement nor the individual or individuals who uttered the statement. Second, the information contained within the four corners of Cribbs's critical email suggests that the source of the label of "slanderous and libelous comments" was none of the defendants, and instead was the Association's attorney or the managing agent. Third, the statement, even if it were made by a defendant - that Baskerville's letter of resignation was slanderous and libelous - was nothing more than a pure opinion in the context of this case. Baskerville's circular argument - that libel can be triggered by a claim of libel, which can be prompted by an assertion of libel, and on and on - tends to trivialize defamation law where Baskerville's evidence of tangible injury was so thin.
We may differ somewhat in our analysis of the second count from the approach employed by Judge O'Connor, but we cannot say that his decision was contrary to law. An order will be affirmed on appeal if it is correct, even if we do not adopt the specific reasoning of the trial judge. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968).
In the final analysis, Baskerville may well feel that he was speaking truth to power, and lost the encounter. Nevertheless, his subjective view of being stifled by those wielding influence within the confines of the private condominium regime are unavailing. His hurt feelings do not translate into either a constitutionally-viable civil rights violation or a defamatory injury for which he can recover damages.
Judges O'Connor and O'Shaughnessy capably resolved this dispute, bringing it to an appropriate conclusion under existing law established by our Supreme Court. We cannot conceive of a legitimate way to revive it.