Salzano v. North Jersey Media Group Inc.

Justice HOENS,

concurring in part and dissenting in part.

I concur in the majority’s conclusion that the time has come for us to reject the initial pleadings exception to the fair reporting privilege and I concur in the majority’s persuasive and thorough explanation of why that exception has no place in our jurisprudence. Moreover, I concur in the majority’s conclusion that once it has been determined that the fair reporting privilege applies, it becomes an absolute, rather than a qualified one.

I dissent, however, from the majority’s analysis of the application of the fair reporting privilege in this case because I cannot agree with the majority’s conclusion that the news articles that are the focus of this litigation meet the test of “full, fair and accurate.” Instead, in my view, those news reports fall short of the standard that we have traditionally applied, with the result that they should not be cloaked in the protection that the privilege affords.

Much of the majority’s approach to the meaning of “full, fair and accurate” is not subject to serious debate. Its reliance, for example, on this Court’s opinion in Costello v. Ocean County Observer, 136 N.J. 594, 607-09 , 643 A.2d 1012 (1994), including that decision’s references to the Restatement test, see Restatement (Second) of Torts § 611 comment f (1976) (describing accuracy and fairness requirements of fair reporting privilege), ante at 522-24, 993 A.2d at 791-93, is hardly controversial. But in explaining the meaning of the “full, fair and accurate” articulation of the standard *535 that serves as the yardstick against which the privilege-worthiness of a news report will be measured, and in applying that test in this matter, the majority has overlooked the significant shortcomings of these news reports.

Longstanding decisions of this Court, together with opinions on the question that have been published by our appellate courts, and by the federal and other state courts, identify a series of fundamental and widely accepted principles that inform courts in then-decisions about whether a particular news report will be privileged. We do not demand that a report be “exact in every immaterial detail,” but instead require that it be “a substantially correct account.” Costello, supra, 136 N.J. at 607 , 643 A.2d 1012 (quoting Restatement (Second) of Torts, supra, § 611 comment f); see also Orso v. Goldberg, 284 N.J.Super. 446, 454 , 665 A.2d 786 (App.Div.1995) (concluding privilege will apply to news report that conveys “a substantially correct account,” even if it is not “exact in every detail”).

We have not required, therefore, that a news report merely reprint the words of a complaint filed in court, or that it only quote verbatim what has been said in a public forum; we have recognized that some inaccuracies may be reported without loss of the privilege. In those circumstances, the threshold question is whether the factual inaccuracy is significant or substantial, because if it is not, the mere fact of an inaccuracy will not void the privilege. Thus, for example, a news article that referred to a particular court order as the source of information, although inaccurate, was deemed to be of no consequence because the information came from a different document contained in the same court file. Sedore v. Recorder Publ’g Co., 315 N.J.Super. 137, 159 , 716 A.2d 1196 (App.Div.1998). Similarly, a news report that takes care to present both sides of a story will find refuge within the protective scope of the privilege, in spite of including some otherwise objectionable language. Orso, supra, 284 N.J.Super. at 455 , 665 A.2d 786 .

*536 Nonetheless, this Court has been careful to make it clear that the privilege is not a license for sensationalizing and does not authorize or protect false or misleading reports. See Costello, supra, 136 N.J. at 609-10 , 643 A.2d 1012 . That is, the article may not be edited or have information deleted in such a way as to become misleading, and factual omissions or facts that are “misplaced” so as to “convey an erroneous impression” to the reader will not meet the test of fairness. Id. at 608 , 643 A.2d 1012 (quoting Restatement (Second) of Torts, supra, § 611 comment f). As a result, if a publication creates false innuendo from the facts as they are reported, see Romaine v. Kallinger, 109 N.J. 282, 293 , 537 A.2d 284 (1988) (assessing fair inference to be drawn from larger context of book chapter), or if a news account of a trial court proceeding is written so as to hold up a person to ridicule, Bock v. Plainfield Courier-News, 45 N.J.Super. 302, 309-10 , 132 A.2d 523 (App.Div.1957), or if it includes “distorted accounts” of what occurred, id. at 307 , 132 A.2d 523 , or if old allegations that have already been discredited are presented as if they are still current and unresolved, Fortenbaugh v. N.J. Press, Inc., 317 N.J.Super. 439, 449-51 , 722 A.2d 568 (App.Div.), certif. denied, 160 N.J. 91 , 733 A.2d 496 (1999); Reilly v. Gillen, 176 N.J.Super. 321, 327 , 423 A.2d 311 (App.Div.1980), the report will not meet the test of “full, fair and accurate” needed to invoke the protection of the privilege.

Our view, and that of our Appellate Division, is squarely in accord with the analytical framework used by the federal courts as well as the courts in our sister states. Minor variations in wording, as between an arrest report and the news account, will not vitiate the privilege, see Hegwood v. Cmty. First Holdings, Inc., 546 F.Supp.2d 363, 367 (S.D.Miss.2008); Pittman v. Gannett River States Publ’g Corp., 836 F.Supp. 377, 384 (S.D.Miss.1993), but distortions or use of facts that have been rearranged to create false impressions will, see Lawton v. Ga. Television Co., 216 Ga.App. 768 , 456 S.E.2d 274, 277 (1995).

*537 Applying these principles, the minor inaccuracies in the news reports before this Court relating to the specific sum sought to be returned to the bankrupt estate by the Trustee, although factually erroneous, are too inconsequential to matter. That is, referring to the sum in issue as $500,000 or even as “$& MM” when the true amount was $469,995.84, is the kind of minor deviation from precise factual accuracy that would not render the account inaccurate in the sense required for loss of the privilege. Similarly, including a reference to plaintiffs father as the “mastermind behind NorVergenee,” although apparently not derived directly from the Trustee’s complaint, would not suffice to take the news accounts outside of the privilege. Were those the only deviations from the court filing by the Trustee, I would join my colleagues in their analysis and in their conclusion that the news reports were “full, fair and accurate.” However, those are not the only inaccuracies in these news reports.

Rather, the real inaccuracy, and one that in my view takes the news accounts outside of the privilege, lies in the use of variations of the verb “steal” both in the headlines and in the body of the reports. Analyzing that word choice requires consideration of the role that headlines play in the “full, fair and accurate” framework, as well as the precision with which legal terms must be utilized by news reporters. More to the point, it requires us to consider the overarching question of how we determine whether the “sting” of the news report matches the “sting” of the truth. See, e.g., Lawrence v. Bauer Publ’g & Printing, 89 N.J. 451, 460 , 446 A.2d 469 (holding that in defamation action, defense of truth requires that truth be “as broad as the defamatory imputation or ‘sting’ of the statement”), cert. denied, 459 U.S. 999 , 103 S.Ct. 358 , 74 L.Ed.2d 395 (1982).

Headlines, in general, present unique challenges in the determination of whether a news report is “full, fair and accurate.” We have commented on the impact that a misleading headline has on the “full, fair and accurate” analysis because of its capacity to create a focus for the article that may be misleading. See *538 Costello, supra, 136 N.J. at 609-10 , 643 A.2d 1012 . Even though headlines surely have the capacity to create a greater impact on the reader, however, a news account should be considered as a whole. See Molin v. Trentonian, 297 N.J.Super. 153, 157 , 687 A.2d 1022 (App.Div.) (noting that majority of jurisdictions support rule that headlines “be construed in conjunction with their accompanying articles”), certif. denied, 152 N.J. 190 , 704 A.2d 20 (1997), cert. denied, 525 U.S. 904 , 119 S.Ct. 239 , 142 L.Ed.2d 196 (1998). As a result, if the only objectionable implication flows from the few words chosen for large print headlines, the privilege will still apply. Ibid. Similarly, if the inaccuracy created by the headline is immediately corrected in the opening sentence of the report itself, the news report, when evaluated as a whole, may be entitled to be protected by the privilege. See McGhee v. Newspaper Holdings, Inc., 115 P.3d 896, 898-99 (Okla.Civ.App.2005).

News reports that utilize legal terminology, likewise, have been accorded separate evaluation. The majority, for example, relies on a pair of federal court decisions as part of analyzing the role to be played by a news report’s use of legal terms. Ante at 523-24, 993 A.2d at 792-93; see Riley v. Harr, 292 F.3d 282, 296 (1st Cir.2002) (utilizing “rough-and-ready summary” standard to evaluate fairness); Ricci v. Venture Magazine, Inc., 574 F.Supp. 1563, 1567 (D.Mass.1988) (concluding that journalists need not utilize “technically precise language” in describing courtroom proceedings; applying “common sense standard of expected lay interpretation of media reports of trials”).

Although we have not previously so held, other courts have concluded that the use of technically inaccurate legal terms "will not support relief, as long as the report itself remains full, fair and accurate. See, e.g., Orr v. Argus-Press Co., 586 F.2d 1108, 1112-13 (6th Cir.1978) (concluding that terms “swindle” and “phony” used to describe facts asserted in SEC complaint were “ill chosen” but that other factual descriptions undermined false inferences), cert. denied, 440 U.S. 960 , 99 S.Ct. 1502 , 59 L.Ed.2d 773 (1979); Lambert v. Providence Journal Co., 508 F.2d 656, 658-59 (1st Cir.) *539 (applying Rhode Island law; concluding that describing killing as murder was not misleading), cert. denied, 423 U.S. 828 , 96 S.Ct. 45 , 46 L.Ed.2d 45 (1975); Koniak v. Heritage Newspapers Inc., 198 Mich.App. 577 , 499 N.W.2d 346, 348-49 (rejecting claim based on description of nolo contendere plea as “willing to accept the consequences of the conviction”), appeal denied, 444 Mich. 856 , 508 N.W.2d 500 (1993).

The test to be applied in the evaluation of whether a news report is “full, fair and accurate” uses common sense and objective terms, asking whether the “sting” of the report matches that of the event or the pleading being reported upon. See Lawrence, supra, 89 N.J. at 460 , 446 A.2d 469 . Other courts have explained the meaning of this test to be whether the report “produces the same effect on the mind of the recipient which the precise truth would have produced.” Yoke v. Nugent, 321 F.3d 35 , 43 (1st Cir.2003) (applying Massachusetts law; quoting ELM Med. Lab., Inc. v. RKO Gen., Inc., 403 Mass. 779 , 532 N.E.2d 675, 678 (1989)).

In engaging in this evaluation, however, courts have focused on what it was about the truth that produced a “sting” and have compared that to the effect produced by the challenged news account. Thus, for example, a news report that inaccurately referred to a defendant being accused of thirty to fifty acts of sexual assault on a family member, in place of the eight identified in the charging instrument, was privileged. Koniak, supra, 499 N.W.2d at 348 . Although plainly inaccurate, the Michigan court pointed out that “the sting” arising from the charge of sexual assault was the same, “whether plaintiff assaulted his stepdaughter once, eight times, or thirty times.” Ibid. Similarly, where a news report revealed that its subject had been convicted of homicide, had served four years, and was now employed as a school bus driver, the fact that she had only served two years was irrelevant. Woodard v. Sunbeam Television, Corp., 616 So.2d 501, 503 (Fla.Dist.Ct.App.1993). The article’s “sting” arose from the fact that someone who had been convicted of a homicide was working with children in the community; the length of the sen *540 tence served was immaterial when evaluating the “stinging” effect that the truth would have had. Ibid.

As part of the basis for its conclusion that the news articles in this appeal were sufficiently “full, fair and accurate” to merit protection, the majority relies on dictionary definitions of the word “steal” as support for the common sense understanding of the articles and the “sting” that they inflicted as compared to the truth. Ante at 525-26, 993 A.2d at 793-94. But that approach actually misses the point, because even the definitions quoted demonstrate that the “sting” of that word choice is far harsher than the truth, and that choosing that value-laden word, in the end, created a news report that was both unfair and inaccurate.

The definitions of the word “steal” that are used by the majority each carry clearly pejorative implications of a criminal act, ante at 525, 993 A2d at 793. Numerous other definitions of the word “steal” also explain that the word conveys a strongly negative message. “Steal, like misappropriate, is generally a broader term than embezzle; it has the same meaning as misappropriate, but much stronger negative connotations.” A Dictionary of Modem Legal Usage 311 (2d ed. 2001) (emphasis omitted). “Steal [is defined to mean]: 1. To take (personal property) illegally with the intent to keep it unlawfully.” Black’s Law Dictionary 1453 (8th ed. 2004). To steal, when used as a verb, means “to take and carry away feloniously and usu[ally] unobserved: take or appropriate without right or leave and with intent to keep or make use of wrongfully.” Webster’s Third New International Dictionary 2232 (1976). Each of these definitions, therefore, carries with it the clear connotation of a crime, together with its attendant evil-minded mens rea. None of that is faithful to the actual allegations made in the Bankruptcy Court by the Trustee.

In traditional defamation law, attributing a criminal act to someone is slander per se, see Romaine, supra, 109 N.J. at 291 , 537 A.2d 284 (“Certain kinds of statements ... are considered defamatory as a matter of law. A prime example is the false *541 attribution of criminality.”), and innuendo that insinuates guilt of wrongdoing will not be protected as fair, see Fortenbaugh, supra, 317 N.J.Super. at 451 , 722 A.2d 568 (citing Reilly, supra, 176 N.J.Super. at 327 , 423 A.2d 311 ). Historically, false accusations of a crime or false insinuations that one has committed a criminal act are considered to be different from other defamatory statements. At common law, for example, it was well established that such statements were actionable without proof of special damages, because they were regarded to be slander per se. Gnapinsky v. Goldyn, 23 N.J. 243, 250 , 128 A.2d 697 (1957); Johnson v. Shields, 25 N.J.L. 116, 118-19 (1855).

Although we have, in another context, noted that some legal scholars have voiced criticism in general of the slander per se rule, see, e.g., Ward v. Zelikovsky, 136 N.J. 516, 541 , 643 A2d 972 (1994), it retains vitality, including, in particular, as it relates to the false imputation of a criminal act. See, e.g., Jobes v. Evangelista, 369 N.J.Super. 384, 397 , 849 A.2d 186 (App.Div.) (concluding charge to jury on presumed damages was appropriate based on falsely-filed criminal charges), certif. denied, 180 N.J. 457 , 852 A.2d 193 (2004); Ricciardi v. Weber, 350 N.J.Super. 453, 475-76 , 795 A.2d 914 (App.Div.2002) (stating rule; concluding that accusation of sexual harassment was not imputation of criminal act required for slander per se), certif. denied, 175 N.J. 433 , 815 A.2d 479 (2003); Biondi v. Nassimos, 300 N.J.Super. 148, 156-57 , 692 A.2d 103 (App.Div.1997) (adopting strict definition of criminal offense capable of constituting slander per se; relying on definition contained in Restatement (Second) of Torts § 571 comment c (1977)).

This long common law history demonstrates that some false accusations, including false accusations of a crime, are so obviously damaging to one’s reputation that no proof of special damages is required in order for an award to be appropriate. Words of that type carry unique and plainly pejorative connotations entitling their target to relief simply because they have been uttered. By implication, therefore, words like that convey a special sting, *542 making them worthy of our careful scrutiny if we are to agree that they nonetheless will be cloaked in privilege.

Because in common understanding the word “steal” describes a criminal act, the headline and the opening sentence conveyed, unmistakably, the message that the subject of the story was being prosecuted for a crime. That, in turn, surely conjured up in the mind of any objective and reasonable reader the mental image of the now all-too-familiar “perp walk” on the evening news that is sure to follow. Joining that image with an entirely accurate reference to the United States Trustee compounds rather than blunts the unfair message, for it brings to mind visions of the awesome power of the Federal Government as the accuser with all that that entails. See, e.g., Schiavone Constr. Co. v. Time, Inc., 847 F.2d 1069, 1088 (3d Cir.1988) (concluding that deletion of exculpatory language from report while “thrust of the story” remained intact enhanced potential for unfairness and distortion).

Polite parsing of the legal nuances as between stealing and a civil complaint charging that one has diverted assets of a bankrupt estate cannot overcome the reality that the choice of the word “steal” inflicts a far greater sting. To regard that as full, fair and accurate and to cloak it with absolute immunity rewards a choice made to sensationalize stories rather than report them.

Whether we see news reporters as the eyes of the public or as our agents on the scene, that is, as surrogates who see events or read documents in our place, see Costello, supra, 136 N.J. at 607, 643 A.2d 1012 (quoting Prosser and Keeton on Torts § 115 (5th ed. 1984)), and whether we regard the fair reporting privilege as being supported by the alternative rationales of “public supervision” or serving the public’s interest in being informed, see Sedore, supra, 315 N.J.Super. at 152 , 716 A.2d 1196 (quoting Medico v. Time, Inc., 643 F.2d 134, 141-42 (3d Cir.), cert. denied, 454 U.S. 836 , 102 S.Ct. 139 , 70 L.Ed.2d 116 (1981)), in the end, the news report simply calls matters to the attention of a wider audience of people who would otherwise have been privileged to hear or see them first-hand. We therefore protect the press from the threat of suit that would otherwise be permissible for a republication of a *543 slanderous statement. For me, however, part and parcel of the privilege must be that the news entity acts as a neutral filter of the information, reporting it as blandly or as harshly as it would appear to us had we read, heard, or seen it ourselves. That is not to imply that the fair reporting privilege does or should require a mere parroting or duplication of information, but that the report, as a whole, is full, fair and accurate.

The privilege itself has roots not only in the First Amendment freedom of the press and our cherished ideals relating to a fully informed public, but, in modern times, has strong ties to our desire to foster openness and transparency in all aspects of our government. But the price to be paid for that shield of immunity must be our insistence that news organizations faithfully, carefully, and accurately perform their role and that they find no refuge in the privilege when the words that they have chosen inflict a greater sting than the truth.

This news story has all of the elements that cry out for this Court to pull aside the cloak of privilege, for it misleads by innuendo, insinuates criminal prosecutions are afoot, and implies by distortion. It does not qualify as a news report that is full, fair and accurate and I therefore cannot agree that it is worthy of the protection that follows the invocation of an absolute privilege. Rather, I would reverse the Appellate Division’s conclusion that the news reports were full, fair and accurate and would conclude instead that, in their entirety, the news reports fall outside the protective scope of the privilege. I would therefore expand the remand ordered by the majority as a remedy for the assertions relating to plaintiff’s other business, Charity Snack, to include the news reports as a whole.

Justices LaVECCHIA and RIVERA-SOTO join in this opinion.

For affirmance in part/reversal in part—Justices LONG, ALBIN and WALLACE—3.

For concurrence in part/reversal in part—Justices LaVECCHIA, RIVERA-SOTO and HOENS—3.