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Petro-Lubricant Testing Laboratories, Inc. v. Adelman

Supreme Court of New Jersey

May 7, 2018

PETRO-LUBRICANT TESTING LABORATORIES, INC., and JOHN WINTERMUTE, Plaintiffs-Appellants,
v.
ASHER ADELMAN, d/b/a/ eBossWatch.com, Defendant-Respondent.

          Argued November 6, 2017

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 447 N.J.Super. 391 (App. Div. 2016).

          James T. Prusinowski argued the cause for appellants (Trimboli & Prusinowski, attorneys; James T. Prusinowski, and Mark G. Clark, of the Michigan bar, admitted pro hac vice, of counsel and on the briefs, and Stephen E. Trimboli, on the briefs).

          Garen Meguerian argued the cause for respondent (Garen Meguerian, on the brief).

          Eugene Volokh (First Amendment Clinic) of the California bar, admitted pro hac vice, argued the cause for amicus curiae Reporters Committee for Freedom of the Press (Hartman & Winnicki; and the First Amendment Clinic, attorneys; Daniel L. Schmutter and Eugene Volokh, on the brief).

          CJ Griffin argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Pashman Stein Walder Hayden, and the American Civil Liberties Union of New Jersey Foundation, attorneys; CJ Griffin, on the brief, and Edward L. Barocas, Jeanne M. LoCicero, Alexander R. Shalom, of counsel and on the brief).

          Thomas J. Cafferty argued the cause for amicus curiae New Jersey Press Association (Gibbons, attorneys; Thomas J. Cafferty, of counsel and on the brief, and Nomi I. Lowy and Lauren James-Weir, on the brief).

          ALBIN, J., writing for the Court.

         At issue in this case are two common law doctrines that protect speech from overreaching lawsuits: the single publication rule and the fair report privilege.

         Defendant Asher Adelman established eBossWatch.com. On August 3, 2010, the website published an article entitled "'Bizarre' and hostile work environment leads to lawsuit." The article details a gender-discrimination, workplace-harassment, and retaliation lawsuit brought against Petro-Lubricant Testing Laboratories, Inc., and its chief executive officer and co-owner, John Wintermute (collectively Wintermute), by a former employee, Kristen Laforgia. The article summarized and quoted portions of Laforgia's complaint and described Wintermute as, among other things, "a violent bully, a racist, and a womanizer" who regularly used profanity and referred to women in the most vulgar and degrading language. Of particular significance to the present appeal, the article indicated that Wintermute "allegedly forced workers to listen to and read white supremacist materials."

         More than one year later-on December 22, 2011-Wintermute's attorney sent a letter to Adelman, contending that the article was false and defamatory, that Laforgia's complaint was baseless, and that Laforgia and Wintermute had settled the lawsuit. In an email response, Adelman defended the article, stating that it was "clearly a reporting of [Laforgia's] complaint." Nevertheless, Adelman indicated that he "made some minor changes to the wording" of the article "to make it even more clear that [the] article is a factual reporting of [Laforgia's] complaint." Adelman provided a link to the modified article, which was posted in December 2011 but retained the original date of publication. A number of changes were made to the article, some seemingly minor. The most significant change for purposes of this appeal is the replacement of, "[Wintermute] also allegedly forced workers to listen to and read white supremacist materials, " with "John Wintermute also allegedly regularly subjected his employees to 'anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay rants, '" quoting from Laforgia's complaint.

         Wintermute filed the present defamation action. The trial court found that because of alterations to the original article, the single publication rule did not apply, and therefore the limitations period had not expired. Nevertheless, the court held that the modified article fell within the ambit of the fair report privilege and dismissed the defamation lawsuit.

         The Appellate Division disagreed with the trial court's finding that the modified article constituted a second publication. 447 N.J.Super. 391, 400-01 (App. Div. 2016). The panel held that under the single publication rule, a new statute of limitations begins to run only "if a modification to an Internet post materially and substantially alters the content and substance of the article." Id. at 400. The panel reasoned that "if a minor modification diminishes the defamatory sting of an article, it should not trigger a new statute of limitations." Ibid. The panel therefore dismissed as untimely Wintermute's defamation lawsuit filed more than one year following publication of the original article. Id. at 400-01. The panel did not decide whether the fair report privilege barred the action. The Court granted Wintermute's petition for certification. 229 N.J. 136(2017).

         HELD: The single publication rule applies to an internet article. However, if a material and substantive change is made to the article's defamatory content, then the modified article will constitute a republication, restarting the statute of limitations. In this case, there are genuine issues of disputed fact concerning whether Adelman made a material and substantive change to the original article, and the Appellate Division erred in dismissing the defamation action based on the single publication rule. However, the modified article is entitled to the protection of the fair report privilege. The article is a full, fair, and accurate recitation of a court-filed complaint. The trial court properly dismissed the defamation action, and on that basis the Court affirms the Appellate Division's judgment.

          1. A defamation action must be filed within one year of the publication of an actionable writing or utterance. N.J.S.A. 2A:14-3. Generally, every repetition of a defamatory writing gives rise to a separate cause of action under the multiple publication rule. To mitigate the harshness and unfairness of the inflexible application of the multiple publication rule, courts developed the "single publication rule." Churchill v. State, 378 N.J.Super. 471, 479-80 (App. Div. 2005). Under the single publication rule, a speech or a single radio or television broadcast delivered to an audience of thousands of people or the issuance of the first edition of a newspaper or book gives rise to only one cause of action. The rule ensures that a defamation action is brought within one year of an initial defamatory publication. The single publication rule, however, has limits. The reprinting of an article in the next issue of a magazine or the delivery of the second edition of a book is deemed a republication-a second publication-giving rise to a new cause of action and the running of a new statute of limitations. Moreover, an article or book that is substantially modified from its initial release to its later issuance is also classified as a republication, (pp. 12-15)

         2. Whether in print or electronic media, republication triggers the start of a new statute of limitations. What constitutes republication in a website setting is the issue. In Churchill, the Appellate Division held that no principled reason justified "treating the Internet differently than other forms of mass media." 378 N.J. Super, at 483. The Court agrees that the beneficent purpose of the single publication rule applies as strongly to the internet as it does to traditional media. Courts in other jurisdictions have adopted legal constructs for determining when the defamatory content or substance of an internet article is sufficiently altered to constitute a republication. The Court distills the following principle from the relevant cases: a republication occurs to an online publication if an author makes a material and substantive change to the original defamatory article. A material change is one that relates to the defamatory content of the article at issue. A substantive change is one that alters the meaning of the original defamatory article or is essentially a new defamatory statement incorporated into the original article, (pp. 15-22)

         3. The Appellate Division erred in granting summary judgment on statute of limitations grounds because a genuine issue of fact was in dispute concerning whether a republication occurred. It is one thing to write that Wintermute "forced workers to listen and read white supremacist materials" and another to write that he "regularly subjected his employees" to rants against people of the Jewish and Catholic faiths, minorities, and gay people. White supremacists do not necessarily have a monolithic and uniform belief structure. Reasonable people may disagree about the scope of a white supremacist's belief system; reasonable people will not disagree about the meaning of anti-Semitic, anti-Catholic, and anti-gay rants. The change to the article was material-relating to the article's defamatory content. At the very least, genuine issues of fact are in dispute about whether the modification to the original article was substantive-that is, whether it injected a wholly new defamatory statement into the article. The Court rejects the suggestion that Adelman's purported intention to lessen the defamatory sting of the modified article somehow alters the assessment of whether the new defamatory material constitutes a republication and does not agree that the new defamatory material resulted in a "softening" of the original article, (pp. 22-26)

         4. The conclusion that Adelman is not entitled to summary judgment under the single publication rule does not mean he exposed himself to additional liability by modifying the article. The fair report privilege extends to a full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding, including a civil complaint, regardless of the truth or falsity of the initial allegations and defenses because citizens have a right to know what has been filed in court and how the judicial system responds to it. Any reasonable person reading the modified article would understand that it was reporting on facts alleged in a civil complaint. The modified article is a full, fair, and accurate account of a court-filed complaint alleging gender discrimination, workplace harassment, and retaliation and is protected by the fair report privilege, (pp. 26-30)

         The judgment of the Appellate Division is AFFIRMED as MODIFIED.

          JUSTICE SOLOMON, CONCURRING, expresses the view that the newest version of Adelman's blog post did not constitute a republication as a matter of law and that plaintiffs' claim is thus barred by the one-year statute of limitations for defamation claims. According to Justice Solomon, the majority's determination that "white supremacist materials" are distinct from materials that are "anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay" is contrary to common parlance, and any changes to the article were not substantive.

          JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA join in JUSTICE ALBIN's opinion. JUSTICE SOLOMON filed a concurring opinion, in which CHIEF JUSTICE RABNER and JUSTICE TIMPONE join.

          OPINION

          ALBIN JUSTICE.

         Defamation law balances two competing interests -- an individual's right to protect his reputation from unjustified and false aspersions and our citizens' right to free expression and robust debate in our democratic society. Because an informed public is a prerequisite to a functioning democracy, our common law provides special safeguards to protect speech from unwarranted attacks through the legal process. At issue in this case are two common law doctrines that protect speech from overreaching lawsuits: the single publication rule and the fair report privilege.

         Generally, the single publication rule bars the resetting of the one-year statute of limitations governing a defamation action when multiple copies of a printed article are widely distributed and read. In this appeal, we must determine how the single publication rule applies to an article posted on a website and what changes to an article's content constitute a republication that triggers the running of a new statute of limitations.

         Plaintiffs Petro-Lubricant Testing Laboratories, Inc., and its chief executive officer and co-owner, John Wintermute (collectively Wintermute), filed an action against defendant Asher Adelman alleging defamation per se, defamation, false light publicity, and intentional infliction of emotional distress. Adelman ran a website named "eBossWatch.com" that published a list of "America's Worst Bosses." The website posted an article recounting allegations in a civil complaint that Wintermute engaged in highly offensive workplace conduct and ranked Wintermute thirty-ninth on the worst-bosses list. After Wintermute complained about the article, Adelman modified it but not to Wintermute's satisfaction. Wintermute's lawsuit was filed within one year of the modified article's publication but outside the limitations period for the original article.

         The trial court denied Adelman's summary judgment motion on statute-of-limitations grounds, finding that the single publication rule did not apply because the changes made to the original article constituted a second publication. The defamation action therefore was not time-barred. Nevertheless, the court granted summary judgment in favor of Adelman based on the fair report privilege because the modified article was a full, fair, and accurate report of a lawsuit filed against Wintermute. On that basis, the defamation lawsuit was dismissed.

         The Appellate Division disagreed with the trial court's single-publication-rule analysis, concluding that the minor modifications to the second article did not transform the article into a second publication. Accordingly, the Appellate Division determined that the statute of limitations began to run when the original article was published and dismissed Wintermute's action as untimely.

         We now hold that the single publication rule applies to an internet article. However, if a material and substantive change is made to the article's defamatory content, then the modified article will constitute a republication, restarting the statute of limitations. In the record before us, there are genuine issues of disputed fact concerning whether Adelman made a material and substantive change to the original article. We therefore conclude that the Appellate Division erred in dismissing the defamation action based on the single publication rule at the summary judgment stage.

         We concur, however, with the trial court that the modified article is entitled to the protection of the fair report privilege. The article is a full, fair, and accurate recitation of a court-filed complaint. The trial court properly dismissed the defamation action, and on that basis we affirm the Appellate Division's judgment.

         I.

         A.

         In addressing this appeal, we rely on the facts adduced in the summary judgment record.

         Adelman established eBossWatch.com to provide job seekers with information about the work environment in certain companies and organizations. The website publishes an annual "America's Worst Bosses" list -- a list compiled by "workplace experts" based on a methodology created by Adelman.

         On August 3, 2010, the website published an article, drafted by an eBossWatch.com volunteer and edited by Adelman, entitled "'Bizarre' and hostile work environment leads to lawsuit." The article details a gender-discrimination, workplace-harassment, and retaliation lawsuit brought against Wintermute by a former employee, Kristin Laforgia. The 2010 edition of "America's Worst Bosses" -- published on December 15, 2010 -- ranked John Wintermute as number thirty-nine on the list of the one-hundred worst bosses. A hyperlink attached to Wintermute's name brought readers to the article.

         The article summarized and quoted portions of Laforgia's eleven-page complaint. We recite only parts of the article here. The article described Wintermute as, among other things, "a violent bully, a racist, and a womanizer" who regularly used profanity and referred to women in the most vulgar and degrading language. The article also described Wintermute as having "an explosive temper when drunk, " and stated that he "had or attempted to have affairs with several of Petro[-Lubricant]'s female employees" and "threatened to kill [one female employee] when she ended their relationship." Additionally, the article repeated Laforgia's allegation that she was fired because she refused to lie for the company when a retaliation lawsuit was brought by a former female employee. Of particular significance to the present appeal, the article indicated that Wintermute "allegedly forced workers to listen to and read white supremacist materials."

         More than one year later -- on December 22, 2011 --Wintermute's attorney sent a letter to Adelman, contending that the article was false and defamatory, that Laforgia's complaint was baseless, and that Laforgia and Wintermute had settled the lawsuit. The letter demanded the removal of Wintermute's name from the worst-bosses ...


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