Dr. Raymond M. Gordon v. CBS Broadcasting

J-A25019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DR. RAYMOND M. GORDON AND ST. IN THE SUPERIOR COURT OF

MATTHEW’S BAPTIST CHURCH PENNSYLVANIA

Appellants

v.

CBS BROADCASTING, INC. DOING

BUSINESS AS KYW TV-3 AND CBS 3,

NATASHA BROWN, AND ELIZABETH HUR

Appellees No. 3132 EDA 2013

Appeal from the Judgment Entered on September 4, 2013

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: 001974

BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 08, 2014

In this defamation action, Dr. Raymond M. Gordon (“Pastor Gordon”)

and St. Matthew’s Baptist Church (“St. Matthew’s”)1 appeal the trial court’s

entry of summary judgment in favor of appellees CBS Broadcasting Inc.;

Philadelphia, Pennsylvania TV station CBS 3; Natasha Brown; and Elizabeth

Hur (collectively, “CBS”). Appellants claim that CBS defamed them in its

broadcast concerning the arrest of Archie Bolger, a St. Matthew’s congregant

and former St. Matthew’s “preacher,” on suspicion of sexual assault of a

minor. They contend that the reporters’ use of certain terminology and their

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*

Retired Senior Judge assigned to the Superior Court.

1

We refer to these parties collectively as “Appellants.”

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emphasis upon Bolger’s affiliation with St. Matthew’s led viewers to believe

that Pastor Gordon was guilty of sexual misconduct and that he and/or St.

Matthew’s were complicit in the crime. The trial court entered summary

judgment on behalf of CBS, concluding that no viewer reasonably could have

drawn such conclusions. We affirm.

The trial court has provided the following factual history:

This case arises from a September 19, 2011 CBS evening news

broadcast in which anchor Natasha Brown and [r]eporter

Elizabeth Hur presented a story relating to the arrest of Archie

Bolger on child molestation charges. This broadcast occurred

after the New Jersey Prosecutor’s Office issued a press release

announcing Bolger’s arrest and describing him as a “preacher at

St. Matthew’s Baptist Church in Williamstown[, New Jersey].”

The plaintiff in this case, along with St. Matthew’s, is Pastor

Raymond M. Gordon. Pastor Gordon is the congregation’s senior

spiritual [advisor] and [the] administrative leader of St.

Matthew’s; as evidenced by the broadcast’s footage of a church

sign and church van, his name appears where St. Matthew’s

name appears and his name is closely associated with the

church.

It is not in dispute that Bolger is or was a preacher (he is at

times referred to by church personnel as a “minister”) at

[St. Matthew’s], which is one of the largest churches in the

country. In the Baptist faith, a preacher is a person who

volunteers to preach the gospel when called upon. “Preacher”

and “Pastor” in this context, therefore, have technically different

definitions. Therefore, while Bolger would give sermons at the

church, he was not considered a spiritual or administrative

leader there. There are generally at least 20 members of the

church who are considered “preachers[.”]

[CBS’s] broadcast of September 19, 2011 beg[ins] with anchors

Chris May and Natasha Brown introducing the story from the

CBS studio; it then cuts to Elizabeth Hur, who is standing in the

parking lot of St. Matthew’s Church in New Jersey. Hur gives a

live broadcast, which includes pre-recorded pieces of video.

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Immediately before Brown turned the report over to Hur, she

stated that “The Pastor works at St. Matthew’s Church [. . .]”;

this utterance occurred during a display of a map of part of

South [New] Jersey on the television screen. Above the map

were the words “PREACHER ARRESTED[.”] During Hur’s report,

two pieces of pre-recorded footage were shown where Pastor

Gordon’s name was at least partially readable; one of these

pieces of footage was of a sign at what appears to be

St. Matthew’s main entrance, the other was of a church van.

Both the sign and the van include St. Matthew’s name and an

identification of Pastor Gordon as the pastor of the church. It is

these three aspects of the broadcast upon which [Appellants]

base their claims.

Trial Court Opinion (“T.C.O.”), 9/4/2013, at 1-2.

Based upon these events, on January 17, 2012, Appellants filed suit

against CBS in the Philadelphia Court of Common Pleas, asserting venue on

the basis that defendant CBS 3 and its agents are located in Pennsylvania

and that the broadcast complained of originated in Pennsylvania. In counts I

and III, Appellants alleged “Defamation (actual malice standard)” on behalf

of the two above-captioned claimants. Complaint at 14-15, 17-19. In their

second and fourth counts, Appellants alleged “Defamation (negligence

standard).” Id. at 15-17, 19-20. On February 21, 2012, CBS filed

preliminary objections, which the trial court overruled on April 10, 2012.

The trial court entered a case management order on April 24, 2012, and

discovery commenced. On August 2, 2012, CBS filed a motion to dismiss

the instant litigation due to forum non conveniens, and, in the alternative, to

apply New Jersey law to Appellants’ claims. The trial court denied CBS’s

motion without prejudice on September 21, 2012, but determined that New

Jersey law did apply to this case.

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On May 6, 2013, after extensive, evidently contentious discovery

proceedings, CBS filed a motion for summary judgment. On September 4,

2013, after taking briefing and hearing argument, the trial court entered an

opinion and order granting summary judgment to CBS and dismissing

Appellants’ complaint with prejudice. On October 3, 2013, Appellants timely

filed the instant appeal. On April 14, 2014, the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a)2 incorporating by reference the reasoning set

forth in its September 4, 2013 opinion.

Before this Court, Appellants raise the following issues, which are

reordered to correspond to our discussion:

1. Whether the [t]rial [c]ourt erred in deciding that New

Jersey’s substantive defamation law should apply where

Pennsylvania has a significant interest in creating uniform

defamation standards for Pennsylvania broadcasters and

publishers, and where New Jersey has no interest in making it

more difficult for New Jersey citizens to obtain redress for

reputational harm?

2. Whether the [t]rial [c]ourt erred in concluding as a matter

of law that [CBS’s] [b]roadcast, which identified the alleged

perpetrator of a criminal sexual assault of a minor as St.

Matthew’s “Pastor,” and which included images of Pastor

Gordon’s name, was neither false nor defamatory?

3. Whether the [t]rial [c]ourt erred in concluding that the

[CBS b]roadcast, which identified the perpetrator of a criminal

sexual assault of a minor as St. Matthew’s “Pastor” and which

included multiple images of St. Matthew’s grounds, caused no

reputational harm to St. Matthew’s?

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2

The trial court did not direct Appellants to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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Brief for Appellants at 2.

Although we must take up the choice of law issue before turning to

summary judgment, we begin with the standard of review that applies 3 to

summary judgment orders:

A reviewing court may disturb the order of the trial court only

where it is established that the court committed an error of law

or abused its discretion. Capek v. Devito, 767 A.2d 1047,

1048, n.1 (Pa. 2001). As with all questions of law, our review is

plenary. Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170

(Pa. 1995).

In evaluating the trial court’s decision to enter summary

judgment, we focus on the legal standard articulated in the

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that

where there is no genuine issue of material fact and the moving

party is entitled to relief as a matter of law, summary judgment

may be entered. Where the non-moving party bears the burden

of proof on an issue, he may not merely rely on his pleadings or

answers in order to survive summary judgment. “Failure of a

non-moving party to adduce sufficient evidence on an issue

essential to his case and on which it bears the burden of

proof . . . establishes the entitlement of the moving party to

judgment as a matter of law.” Young v. PennDOT, 744 A.2d

1276, 1277 (Pa. 2000). Lastly, we will view the record in the

light most favorable to the non-moving party, and all doubts as

to the existence of a genuine issue of material fact must be

resolved against the moving party. Penna. State Univ. v.

County of Centre, 615 A.2d 303, 304 (Pa. 1992).

____________________________________________

3

For the reasons set forth infra, we find that the trial court was correct

ultimately to determine that New Jersey law should apply in this case.

However, regardless of the substantive law that applies to a case,

Pennsylvania courts apply Pennsylvania’s procedural law. See ADP., Inc.,

v. Morrow Motors Inc., 969 A.2d 1244, 1246 n.2 (Pa. Super. 2009).

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Murphy v. Duquesne Univ. of The Holy Ghost, 777 A.2d 418, 429

(Pa. 2001) (citations modified).

In order to determine whether the trial court erred in granting

summary judgment, we first must decide whether Pennsylvania or New

Jersey law governs Appellants’ claims. In doing so, we must assess whether

the relevant laws of the candidate states differ. If they do not, we need go

no further. However, if they differ materially, we then must determine the

governmental interests at issue and assess which state has the greater

interest in the application of its law. Wilson v. Transport Ins. Co., 889

A.2d 563, 571 (Pa. Super. 2005) (quoting Ratti v. Wheeling Pittsburgh

Steel Corp., 758 A.2d 695, 702 (Pa. Super. 2000)).

The trial court noted at the outset of its choice-of-law analysis that the

parties appeared not to dispute that New Jersey’s and Pennsylvania’s

respective laws of defamation differ. T.C.O. at 3 n.2; see Brief for

Appellants at 28-29. The court then turned to the second part of the choice-

of-law inquiry concerning the respective governments’ interests in the

matter. The court began by reviewing the Restatement (Second) of Conflict

of Laws § 150, upon which all parties rely. Section 150 (“Multistate

Defamation”) provides as follows:

(1) The rights and liabilities that arise from defamatory matter

in any one edition of a book or newspaper, or any one broadcast

over radio or television, exhibition of a motion picture, or similar

aggregate communication are determined by the local law of the

state which, with respect to the particular issue, has the most

significant relationship to the occurrence and the parties under

the principles stated in § 6.

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(2) When a natural person claims that he has been defamed

by an aggregate communication, the state of most significant

relationship will usually be the state where the person was

domiciled at the time, if the matter complained of was published

in that state.

(3) When a corporation, or other legal person, claims that it

has been defamed by an aggregate communication, the state of

most significant relationship will usually be the state where the

corporation, or other legal person, had its principal place of

business at the time, if the matter complained of was published

in that state.

Restatement (Second) of Conflict of Laws § 150. Restatement section 6

identifies the following principles as germane to the determination of which

jurisdiction has the “most significant relationship to the occurrence”:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the

relative interests of those states in the determination of the

particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of results, and

(g) ease in the determination and application of the law to be

applied.

Id. § 6.

The trial court’s brief analysis focused upon the reputational interests

of Appellants. The trial court acknowledged Appellants’ assertion that more

than twice as many Pennsylvania households as New Jersey households saw

the broadcast. However, the trial court posited that “[d]efamation laws are

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‘undergirded by the state’s interest in protecting the individual reputations of

its citizens.’” T.C.O. at 4 (quoting Fitzpatrick v. Milky Way Prods.,

537 F. Supp. 165, 171 (E.D.Pa. 1982)). Emphasizing Appellants’ concession

that Appellants “are not as well-known in Pennsylvania as in New Jersey,”

and that a “vast majority” of St. Matthew’s congregants live in New Jersey,

the trial court concluded that Appellants’ reputations would suffer the most

in New Jersey. Id. Because “New Jersey defamation laws were enacted to

protect New Jersey citizens . . . from damage to their reputations,” New

Jersey had a greater interest than Pennsylvania in the application of its laws

to the instant case. Thus, the trial court determined that it should apply

New Jersey’s substantive law of defamation to the instant case.

Appellants note that, under Pennsylvania law, if Appellants are treated

as private rather than public figures (the latter of whom are entitled to less

protection in some jurisdictions), they need only establish CBS’s negligence

to recover. Brief for Appellants at 28 (citing Amer. Future Sys., Inc., v.

Better Bus. Bureau, 923 A.2d 389, 400 (Pa. 2007)). However, under New

Jersey law, whether Appellants are treated as private or public figures, they

must establish “actual malice” to recover for a publication involving a matter

“of public concern.” Id. at 28-29; see Durando v. Nutley Sun, 37 A.3d

449, 457 (N.J. 2012).4 Appellants contend that applying New Jersey law

____________________________________________

4

Appellants appear not to dispute that the Bolger story concerned a

matter “of public concern.” Although arguably they concede more than

(Footnote Continued Next Page)

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would “only make it more difficult for that citizen to obtain redress for the

damage to his reputation. In sum, New Jersey has no interest in either

harming a New Jersey resident or protecting a Pennsylvania broadcaster,

and thus [has] no interest in application of its substantive law here.” Id. at

29.

In this regard, Appellants’ argument is unconvincing. If New Jersey

was inclined to yield to the gentler laws of other jurisdictions when

reputational injury to its own residents was at issue, its law, presumably,

_______________________

(Footnote Continued)

necessary here, their failure to challenge that classification paired with cases

at least suggesting that the case sub judice qualifies warrants our conclusion

that this case, indeed, concerns a matter of public concern. See W.J.A. v.

D.A., 43 A.3d 1148, 1157 (N.J. 2012) (“The actual-malice standard will

apply when the alleged defamatory statement concerns a public figure . . .

or involves a matter of public concern. . . . [T]o determine whether speech

involves a matter of public concern or interest that will trigger the actual-

malice standard, a court should consider the content, form, and context of

the speech. . . . Content requires that we look at the nature and importance

of the speech. . . . Context requires that we look at the identity of the

speaker, his ability to exercise due care, and the identity of the targeted

audience.”); Rocci v. Ecole Secondaire Macdonald-Cartier, 755 A.2d 583

(N.J. 2000) (finding a matter of public concern where a teacher was accused

of misconduct in front of students). Moreover, given Appellants’ emphasis

upon the breadth of their reach, it is not a leap to conclude that they qualify

as public figures. Brief for Appellants at 3 (noting that St. Matthew’s has a

membership of over 11,000 members); Complaint at 3 (through various

programs, “Pastor Gordon spreads the gospel by television, radio, and the

internet to thousands of followers in South Jersey, Pennsylvania, Delaware,

New York, and Maryland.”); id. at 7 (“St. Matthew’s is recognized nationally

as a leader in the Baptist faith’s non-charismatic, dispensational, pre-

millennial movement.”). Notably, despite the fact that CBS argues in its

brief that Appellants are public figures, Appellants do not in their reply brief

contest this premise. Consequently, we conclude that New Jersey’s actual

malice standard applies in the instant case.

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would reflect that preference. That is to say, if New Jersey’s government did

not think that its law struck the appropriate balance between free speech

and the protection of reputational interests, the easiest way to fix that would

be to amend its own law. Instead, New Jersey affirmatively chose to raise

the bar for claims of defamation arising in connection with public figures and

matters of public concern to “protect[] the freedom of expression on public

questions guaranteed by the First Amendment.” Hornberger v. Amer.

Broadcasting Cos., Inc., 799 A.2d 566, 578 (N.J. Super. Ct. App.

Div. 2002).5

Appellants also allude to the considerably larger audience in

Pennsylvania, and argue that a state’s interest lies not just in the protection

of the putatively libeled party’s reputation but also in the protection of its

citizens from deception. Id. at 30 (citing Keeton v. Hustler Magazine,

Inc., 465 U.S. 770, 776 (1984)). They argue further that Pennsylvania has

a strong countervailing “interest in establishing uniform defamation

standards for Pennsylvania’s broadcasters.” Id. (citing Davis v. Costa-

Gavras, 580 F. Supp. 1082, 1093 (S.D.N.Y. 1984)).

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5

CBS notes that “New Jersey has strong and explicit policies

encouraging free and open reporting on public figures and matters of public

concern, and it places those policy interests above the ability of its residents

to recover for alleged defamation.” Brief for CBS at 46 (citing, inter alia,

Turf Lawnmower Repair, Inc., v. Bergen Record Corp., 655 A.2d 417,

426 (N.J. 1995)).

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CBS counters by reference to Restatement section 150, which provides

that the law that applies to single-publication defamation claims “usually”

will be determined by the domicile of the alleged victim of the defamation.

Brief of CBS at 43-44. By way of elaborating upon section 150’s direction,

CBS cites Wilson v. Slatalla, 970 F. Supp. 405 (E.D.Pa. 1997), for the

proposition that “[t]he state of plaintiff’s domicile generally has the greatest

concern in vindicating plaintiff’s good name and providing compensation for

harm caused by the defamatory publication.” Id. at 414. In further

support, CBS cites Miller v. Gay, 470 A.2d 1353 (Pa. Super. 1983), for the

proposition that “inhabitants of a state (here Delaware) should not be

accorded rights not given them by their home states, just because a visitor

from a state offering higher protection decides to visit there.” Brief of CBS

at 46 (quoting Miller, 470 A.2d at 1356). We agree with the trial court’s

reasoning and CBS’s argument. Consequently, we find that New Jersey’s

law of defamation properly was applied to this case.

That brings us to Appellants’ second and third issues, which

collectively challenge the trial court’s determination as a matter of law that

Appellants could not recover for defamation. Defamation is a statement that

is “false, communicated to a third person, and tends to lower the subject’s

reputation in the estimation of the community.” Hornberger, 799 A.2d

at 578 (internal quotation marks omitted). Under New Jersey law, “[t]he

threshold issue in any defamation case is whether the statement at issue is

reasonably susceptible of a defamatory meaning,” a question that must be

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decided by the court as a matter of law. Romaine v. Kallinger, 537 A.2d

284, 288 (N.J. 1988). “[T]he court must evaluate the language in question

according to the fair and natural meaning which will be given it by

reasonable persons of ordinary intelligence. In assessing the language, the

court must view the publication as a whole and consider particularly the

context in which the statement appears.” Id. (internal quotation marks

omitted); see Taj Mahal Travel, Inc., v. Delta Airlines, Inc., 164 F.3d

186, 189 (3d Cir. 1998) (reviewing New Jersey law: “A court must look to

the ‘fair and natural meaning which will be given it by reasonable persons of

ordinary intelligence’ and examine the publication as a whole and in

context.” (quoting Romaine, 537 A.2d at 288)). “Only if the language is

ambiguous in the sense of being reasonably subject to either an innocent or

a defamatory meaning, as determined by the court, does the jury decide as

a question of fact whether the readers of the publication understood the

language in its defamatory sense.” Hermann v. Newark Morning Ledger

Co., 138 A.2d 61, 66 (N.J. Super. Ct. App. Div. 1958); cf. Hornberger, 799

A.2d at 578 (“[S]ummary judgment is favored in defamation cases to

encourage comment on matters of public concern.”).

Appellants do not contest that the circumstances underlying their

defamation claim pertained to a matter of public concern. Thus, in order to

survive summary judgment they not only must establish that an average

viewer might reasonably infer from the broadcast that Pastor Gordon and/or

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St. Matthew’s were involved in Bolger’s alleged criminal conduct, but also

that CBS acted with actual malice in its reporting.

Actual malice is defined similarly under federal and state law.

See Rocci v. Ecole Secondaire Macdonald–Cartier, 755 A.2d

583 (N.J. 2000) (treating common-law actual malice and

constitutional actual malice synonymously). In a speech-based

tort case involving a media defendant, “a plaintiff must establish

that the publisher knew the statement to be false or acted in

reckless disregard of its truth or falsity.” Dairy Stores, Inc., v.

Sentinel Pub. Co., Inc., 516 A.2d 220, 233 (N.J. 1986);

accord New York Times Co. v. Sullivan, 376 U.S. 254, 279-

80 (1964). . . .

The reckless-disregard-for-the-truth prong has been defined in a

variety of different ways, but the core principle has remained

constant: establishing reckless disregard requires a showing that

the defendant made the statement with a “high degree of

awareness of [its] probable falsity.” Garrison v. Louisiana,

379 U.S. 64, 74 (1964). The test is subjective, not objective,

and involves analyzing the thought processes of the particular

defendant . . . . See Costello v. Ocean Cnty. Observer, 643

A.2d 1012 (N.J. 1994). . . . [T]o prove reckless disregard, there

must be sufficient evidence that the named “defendant in fact

entertained serious doubts as to the truth of the publication.”

Id.

That an editor or reporter “should have known” or “should have

doubted [the] accuracy” of an article before publishing it is

insufficient to show reckless disregard for the truth. Lawrence

v. Bauer Publ'g & Printing Ltd., 446 A.2d 469, 477 (N.J.

1982). Thus, the actual-malice test will shield careless acts of

publication that would be considered irresponsible by common

journalistic standards. Id. . . .

To act with reckless disregard of the truth, a defendant must

“actually doubt” the veracity of the article. Lawrence, supra.

Only “[i]f the recklessness approaches the level of publishing a

knowing, calculated falsehood,” based on the summary-

judgment record, should the case go to the jury. Maressa v.

N.J. Monthly, 445 A.2d 376, 389 (N.J. 1982).

Durando, 37 A.3d at 459 (citations modified).

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In their complaint, Appellants alleged that CBS’s report led “members

of St. Matthew’s congregation, local officials, and countless others

throughout [CBS’s] broadcast region [to believe] that Pastor Gordon had

been arrested for or was somehow involved in Bolger’s alleged criminal

sexual assault.” Complaint at 4. Similarly, Appellants allege that CBS

“falsely, recklessly, and maliciously broadcast a report that led countless

viewers to believe that Bolger’s alleged criminal sexual assault involved St.

Matthew’s and, even more perniciously, that Pastor Gordon was the

perpetrator of or was somehow involved in Bolger’s alleged crimes.” Id. at

13. “CBS[’s] false and defamatory report of Bolger’s arrest . . . caused

viewers to conclude that Pastor Gordon is a criminal pedophile whose victims

potentially extended to other members of St. Matthew’s congregation, or

that Pastor Gordon was somehow involved in Bolger’s alleged crimes.” Id.

Ultimately, whether these allegations, in tandem with the evidence

obtained in discovery, sufficed to create a jury question hinges upon

(1) whether, in the context of the entire broadcast, one or more “countless

viewers” reasonably could believe that the broadcast implicated Pastor

Gordon and St. Matthew’s in the criminal conduct of which Bolger was

accused, and, if so, (2) whether Appellants made out a prima facie case that

CBS acted with the “actual malice” required by New Jersey law.

The trial court did not address actual malice directly. Instead, it

concluded that the broadcast, viewed as a whole, was materially true and

could not have defamatory meaning as a matter of law, a sufficient basis to

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enter summary judgment even if CBS’s actions were evaluated under the

ordinary negligence standard that applies to defamation claims raised

against private parties on matters not of public concern:

[Appellants] argue that a reasonable viewer could watch the

broadcast and conclude that Pastor Gordon was arrested for

child molestation. [Appellants] base this argument on one

utterance of the word “Pastor” by news anchor Natasha Brown

and two instances where Pastor Gordon’s name appears on the

screen because his name is written on the church sign and the

church van that are in the footage taken of St. Matthew’s

exterior. With respect to St. Matthew’s, [Appellants] argue that

it suffered the same damages as Pastor Gordon because its

reputation hinges on the reputation of Pastor Gordon and

because the broadcast suggested some connection between

Bolger’s crime and St. Matthew’s.

Viewing the broadcast as a whole, it is impossible to conclude

that any person could walk away thinking that Pastor Gordon

had been arrested. Archie Bolger’s name is uttered repeatedly.

It appears in writing on the screen repeatedly. Multiple pictures

of Bolger are shown. A picture of Bolger’s home is shown. . . .

Pastor Gordon’s name appears twice in writing in the broadcast;

neither of these appearances are a result of CBS typing Gordon’s

name onto a screenshot like it did with Bolger’s name numerous

times. . . . A reasonable viewer, therefore, would not conclude

that Pastor Gordon was a child molester, but that Pastor

Gordon’s name happened to appear wherever St. Matthew’s was

advertised because he decided to put his name in several places

on church property that are meant for the public to see.

On the sole occasion [when] Brown utters the word “Pastor[,”]

the utterance is accompanied by a screen shot that includes the

phrase “PREACHER ARRESTED” superimposed on a map of part

of South Jersey. Neither Brown nor anyone else during the

broadcast say[s] “Pastor Gordon” or “Dr. Gordon” or “Raymond

Gordon” or otherwise use[s] Pastor Gordon’s name.

****

Taken as a whole, the broadcast is not a substantial and material

factual deviation from the truth, as it relates to both the Pastor

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and to the church. No phrase in the broadcast was untrue as it

related to St. Matthew’s. While being mentioned in a report

about an accused child molester is perhaps not exactly the kind

of publicity a church craves, mere mention that Bolger was a

preacher at the church does not amount to defamation; if

anything, as [CBS] notes, CBS’s mention that Bolger’s victim

was not a member of the congregation served to further distance

the church from the allegations and reinforce the idea that St.

Matthew’s was only mentioned in the context of providing

biographical facts about Bolger. As to Pastor Gordon, as

discussed above, when the broadcast is viewed in context, it is

both materially true and does not suggest that Pastor Gordon

had any involvement in Bolger’s criminal activity at all.

T.C.O. at 5-7 (emphasis in original).

Appellants contend that the trial court overlooked “critical points—

particularly with respect to the majority of the [b]roadcast’s viewers who

had never seen or heard of Pastor Gordon.” Brief for Appellants at 19.

Appellants also note correctly that Bolger’s name neither was stated nor

appeared on the screen until over one minute into the broadcast.6

Appellants argue that the repeated references to Bolger as “pastor” or

“preacher” created a misapprehension that was not materially offset by the

eventual broadcast of a photo of Bolger or video taken from outside Bolger’s

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6

In a gesture typical of television news broadcasts, but arguably

inconsistent with journalistic norms (i.e., the “inverted pyramid,” which

refers to a method of reporting that foregrounds the most important

information at the “top” of a news story), neither Pastor Gordon’s nor

Bolger’s name appeared until the second half of the report. Pastor Gordon’s

name appeared on the church sign one minute and three seconds into the

broadcast, again on the side of the church van at 1:09 of the broadcast, and

Bolger’s photo appeared at 1:16 closely followed by the reporter’s

identification of Bolger by name at 1:18.

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private residence: “[T]he vast multitude of viewers . . . had never heard of

Pastor Gordon, and thus neither knew what his home looked like or where

he lived.” Id.

Appellants also contest the trial court’s finding as a matter of law that

“when the broadcast is viewed in context, it is both materially true and does

not suggest that Pastor Gordon had any involvement in Bolger’s criminal

activity at all.” T.C.O. at 6. “[I]n describing the person arrested for criminal

sexual assault as ‘[t]he Pastor [who] works at St. Matthew’s Baptist

Church,’” Appellants contend, “Natasha Brown used words that were

unquestionably false and defamatory.” Brief for Appellants at 21.7

Appellants maintain that, for the foregoing reasons, the trial court

overstepped its bounds in determining that no reasonable viewer could glean

from this report that Pastor Gordon was, in fact, the individual arrested for

sexually assaulting a child.

Regarding St. Matthew’s, Appellants emphasize that defamation of an

entity’s principals may “reflect discredit upon the method by which the

corporation conducts its business.” Brief for Appellants at 26 (quoting

Restatement (Second) of Torts § 561). Begging the question at hand, they

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7

To the extent the formal definition of “pastor” is employed as

Appellants maintain, Brown on this one occasion did misuse the term in

reference to Bolger. As well, referring to Bolger as “working” at

St. Matthew’s is inaccurate, or at least misleading, because Bolger’s

evidently occasional service as a “preacher” never rose to the level of

employment.

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argue that “the [b]roadcast identified St. Matthew’s one and only Pastor as

an alleged criminal pedophile,” such that “viewers quite reasonably

concluded that . . . St. Matthew’s had some role in the alleged crime.” Id.

at 27. They submit that Pastor Gordon’s “name is synonymous with St.

Matthew’s, and any aspersion on Pastor Gordon’s character . . . plainly casts

aspersion[s] on how St. Matthew’s conducts its Church and its ministry.”

Id. at 27-28.

As the trial court observed, Appellants’ arguments ultimately depend

upon a fine-grained parsing of excerpts of the broadcast to rebut the trial

court’s finding of material truth taken from the context of the entire

broadcast. This Court would be hard-pressed to dispute that the broadcast

was sloppy, not least in its interchangeable usage of “pastor” and

“preacher.” But the trial court was not bound to evaluate the content or

tone of CBS’s report based upon an inattentive viewer, and Appellants

provide no argument to that effect. Rather, the trial court was bound to ask

whether an average person of ordinary intelligence reasonably could have

believed, after watching the entire report, that Pastor Gordon was the

suspect charged or that Pastor Gordon or St. Matthew’s were implicated in

the suspected criminal activity, rather than peripherally connected to the

suspected criminal.

We have carefully reviewed the CBS broadcast in its entirety. We also

have reviewed the legal authorities cited by Appellants in support of their

appeal, and find that none of them are controlling—trivially because they

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were not decided by New Jersey courts, and more broadly because none of

them present apposite fact patterns. See Brief for Appellants at 15-18. We

acknowledge that the report featured an arguably disproportionate focus

upon St. Matthew’s, insofar as the church occupied the screen and was

repeatedly referred to by name by the reporters more or less throughout the

first minute of the report, during which no one uttered Pastor Gordon’s or

Bolger’s name and neither Pastor Gordon’s nor Bolger’s name or likeness

appeared on the screen in any way. We also must acknowledge, however,

that Bolger’s undisputed affiliation with St. Matthew’s contributed to the

story’s newsworthiness, and it was not unreasonable for CBS to highlight

that connection. When St. Matthew’s, presumably through the agency of

Pastor Gordon, elevated Bolger to the position of preacher, it exposed St.

Matthew’s, and thus Pastor Gordon, to negative publicity in the event that

Bolger was alleged to have acted criminally toward a minor.

Stripped to its essential content, CBS’s broadcast identified one and

only one person as a suspected sexual assailant, and that person was not

Pastor Gordon. The broadcast accurately identified Bolger as a member of

St. Matthew’s and accurately stated that he had served St. Matthew’s as a

preacher. And that one reporter referred once to Bolger as “Pastor” amid

numerous references throughout the broadcast to Bolger as “preacher,”

would have been outweighed for an average viewer by the references to

Pastor Gordon in St. Matthew’s signage, upon which Appellants base their

defamation claim. In arguing that a reasonable viewer of ordinary

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intelligence could conclude that Pastor Gordon was implicated in the criminal

activity due to the allegedly prominent appearance of his identification on St.

Matthew’s sign and van that were pictured in the report, Appellants

essentially forfeit their argument that an average viewer reasonably could

have concluded that Bolger, in fact, was the “pastor” at St. Matthew’s.8

The incidental inaccuracies in CBS’s broadcast, see infra n.7, were

cured for an average viewer who viewed the report in its entirety, at the

conclusion of which no viewer of ordinary intelligence reasonably could have

concluded that Pastor Gordon had been arrested in connection with, or was

complicit in, Bolger’s alleged criminal activity. If such a viewer had

concluded that Pastor Gordon or St. Matthew’s was complicit, that conclusion

would have been a product of conjecture and inference arising not from

CBS’s reporting but from the fact that the inevitably brief report 9 concerning

the breaking story did not conclusively state otherwise. Moreover,

____________________________________________

8

In putting so much stock in the effect upon a reasonable viewer of

referring once to Bolger as “Pastor,” Appellants appear to impute to the

majority of viewers who were not Baptists particular knowledge of Baptist

tradition. However, if the average viewer does not appreciate the

distinction, and tends to conflate “preacher” and “pastor,” then it does not

matter whether the reporters used one title or the other. If that is the case,

Appellants’ argument leads to a circumstance where a reporter cannot

report, even if truthfully, that Bolger had served St. Matthew’s as a

preacher; only by omitting that fact entirely could the reporter ensure that

an average viewer would not mistakenly conclude that Bolger led the St.

Matthew’s congregation. That is a patently untenable result.

9

There is seldom any other kind on half-hour broadcast evening news

programs.

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notwithstanding the prominent placement of St. Matthew’s in the broadcast,

and the reporters’ perhaps unnecessarily emphatic references to Bolger’s

affiliation with that church, the reason for foregrounding St. Matthew’s was

clear in context: Bolger once had occupied a prominent position in a very

prominent congregation, or at least a position in some sense more

conspicuous than the vast majority of St. Matthew’s thousands of

congregants. We sympathize with the negative publicity that descended

upon Pastor Gordon and his church, but people and institutions frequently

are besmirched by their affiliations in ways that are not actionable, and this

appears to be such a case. We are constrained to conclude that the trial

court did not err in granting summary judgment to CBS in this matter.

Our conclusion in this regard does not require us to entertain the

question whether Appellants set forth a prima facie claim adequate to satisfy

New Jersey’s requirement that a reporter act with actual malice to enable

recovery for defamation by a public figure in the context of a matter of

public concern, because Appellants have failed to establish even ordinary

negligence. Had they established a material falsehood, however, we would

conclude that the trial court did not err in finding that Appellants failed to

proffer sufficient evidence based upon which a jury might conclude that CBS

“actually doubt[ed] the veracity of the article,” or that CBS’s recklessness

“approache[d] the level of publishing a knowing, calculated falsehood.”

Durando, 37 A.3d at 459 (internal quotation marks omitted).

Judgment affirmed.

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Judge Donohue joins the memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2014

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