Maressa v. New Jersey Monthly

SCHREIBER, J.,

dissenting.

Article I, paragraph 6 of the New Jersey Constitution safeguards an individual’s right to a cause of action for defamation. 1 It is of course subject to the Federal Constitution, the Supreme law of the land. As such this right has been abridged to some extent by the United States Supreme Court’s interpretation of the First Amendment to the Federal Constitution. Other than that modification the cause of action for defamation cannot be eliminated by the Legislature. Yet the majority’s interpretation *203 of the Shield Law, N.J.S.A. 2A:84A-21, has that precise effect in the case of public figures and public officials, despite the lip service it pays to society’s interest in assuring that individuals enjoy their reputations unimpaired by false and defamatory attacks. Moreover, the language and sense of that Law do not justify that interpretation. It is for these reasons I must dissent.

I

A cause of action for defamation was well established in the common law. Reputation was a protectible interest and the courts were available to compensate the injured person for damages attributable to libelous or slanderous statements. See L. Eldredge, The Law of Defamation 293-94 (1978). As the press developed and actively participated in public affairs by printing articles and comments about individuals, it naturally became the target of those whose reputations suffered at its hands. Protection of the press became a desired goal by the time the Federal Constitution was adopted. Concern focused on the liberty to print whatever one had a mind to without being subjected to prior restraint. See L. Levy, Freedom of Speech and Press in Early American History 13-14 (1963). However, accompanying the freedom was a responsibility for disseminating libelous material. Indeed, the generally accepted rule of law was that libelous utterances were not constitutionally protected speech. Beauharnais v. Illinois, 343 U.S. 250, 266 , 72 S.Ct. 725, 735 , 96 L.Ed. 919 , 932 (1952); Roth v. United States, 354 U.S. 476, 482-83 , 77 S.Ct. 1304, 1307-08 , 1 L.Ed.2d 1498, 1505-06 (1957).

This accommodation between a free press and its responsibility continued substantially unimpaired until New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), when the Supreme Court sharply reduced the press’s accountability for defamatory statements made about public officials. This standard was later extended to public figures. Curtis Publish *204 ing Co. v. Butts, 388 U.S. 130 , 87 S.Ct. 1975 , 18 L.Ed.2d 1094 (1967). Those plaintiffs had to prove that the press knowingly printed false material or that its publication had been made with a reckless disregard for the truth. The latter element was refined in St. Amant v. Thompson, 390 U.S. 727 , 88 S.Ct. 1323 , 20 L.Ed.2d 262 (1968), which held that to show recklessness a plaintiff must introduce evidence “that the defendant in fact entertained serious doubts as to the truth of his publication.” Id. at 731 , 88 S.Ct. at 1325 , 20 L.Ed.2d at 267 .

A plaintiff, after the substantive change in libel law effected by New York Times , encountered the problem of securing the evidence to meet the new heightened test. Proof of the defendant’s state of mind, regarding either actual knowledge or a reckless disregard of the truth, would in all probability have to be developed through the defendant and its employees. Such was the scene in Herbert v. Lando, 441 U.S. 153 , 99 S.Ct. 1635 , 60 L.Ed.2d 115 (1979).

In that case,, plaintiff, a public figure, sued The Columbia Broadcasting System, Inc. (CBS), Lando, the producer of the CBS television show, and others for portraying him as a liar. Lando refused during the discovery process to answer questions involving his mental processes. These inquiries concerned (1) Lando’s conclusions during his research and investigations about which leads to pursue, (2) his impressions of facts gathered from interviewees and his state of mind about their veracity, (3) the basis of his conclusions where he had reached a determination concerning the veracity of persons, information or events, (4) conversations with the coproducer about what should be included or excluded from the program, and (5) Lando’s intentions as manifested by his editorial decisions. Id. at 157 n.2, 99 S.Ct. at 1639 n.2, 60 L.Ed.2d at 122 n.2.

The Court of Appeals for the Second Circuit concluded that because Lando’s state of mind and editorial conversations were protected by an absolute constitutional privilege he need not respond to a discovery request. The United States Supreme *205 Court reversed. Justice White, writing for a majority, reasoned that damages for defamation did not abridge the freedom of press or free speech when the New York Times stancjard was met. Id. at 160, 172, 99 S.Ct. at 1640, 1646 , 60 L.Ed.2d at 124, 131 . Thus it was proper for a plaintiff to focus discovery on a defendant’s thoughts and editorial processes. “[Ujnless liability is to be completely foreclosed,” the thoughts and editorial processes had to be open to examination. Id. at 160 , 99 S.Ct. at 1640 , 60 L.Ed.2d at 124 .

Moreover, the Herbert Court reaffirmed the New York Times doctrine which balanced the freedom of the press and the “basic concern” for the individual’s interest in his reputation. Id. at 169, 99 S.Ct. at 1645 , 60 L.Ed.2d at 129 . The Court reiterated that “there [was] no constitutional value in false statements of fact.” Id. at 171 , 99 S.Ct. at 1646 , 60 L.Ed.2d at 131 , quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 , 94 S.Ct. 2997 , 41 L.Ed.2d 789, 805 . Holding those who publish defamatory statements responsible compensates the injured and deters reckless publication of false statements. Thus Herbert acknowledges that broad discovery into editorial editing and processing is permissible under federal discovery rules 26(b)(1) and 26(c) and is not violative of freedom of the press protected by the First Amendment. 441 U.S. at 177 , 99 S.Ct. at 1649 , 60 L.Ed.2d at 134 .

Insofar as the First Amendment is concerned, the Supreme Court has recognized that an individual’s cause of action for defamation is abridged to the extent that public officials and public figures must prove actual malice as defined in New York Times . The Court recognized the importance of the press’s freedom, but it rejected “complete immunity from liability from defamation” since that would be “an untenable construction of the First Amendment.” Id. at 176, 99 S.Ct. at 1648 , 60 L.Ed.2d at 134 . Thus it concluded that foreclosing discovery of editorial processing would be going too far at the expense of the individual who had been injured by the defamatory statement. See *206 Franklin, “Reflections on Herbert v. Lando,” 31 Stanford L.Rev. 1035 (1979).

II

The Supreme Court acknowledged in Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976), that there was no federal constitutionally protected right for redress from defamation in the absence of an interest “vouchsafed to him by” a state. Id. at 712 , 96 S.Ct. at 1166 , 47 L.Ed.2d at 420 . I find that such an interest exists in New Jersey.

It must be remembered that until the adoption of the Fourteenth Amendment in 1868, there was no federal restriction on state action affecting freedom of the press. The First Amendment to the Federal Constitution applied only to Congress and the authority to legislate on freedom of the press and causes of action for defamation was left to the states. See Levy, Freedom of Speech and Press, supra, at 235. Nine of the original states incorporated provisions protecting freedom of the press in their constitutions. Four did not. Even when the state constitutions included protection for the press, it was unquestioned “that the common-law rules that subjected the libeler to responsibility for the private injury, . . . occasioned by his conduct [was] not abolished by the protection extended to the press in [the] constitutions.” 2 Cooley, Constitutional Limitations 883 (8th ed. Carrington 1927).

For example, article sixteen of the Massachusetts Constitution declared that the “liberty of the press is essential to the security of freedom in a State; it ought not therefore to be restrained in this Commonwealth.” Yet, Chief Justice Parker declared in Commonwealth v. Blanding, 20 Mass. 304, 313 (1825), that this liberty was subject to a provision in article eleven that “every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character.”

*207 Originally, New Jersey had no constitutional provision regarding freedom of the press. Common law actions for libel or slander were cognizable. Cf. McCuen v. Ludlum, 17 N.J.L. 12 (Sup.Ct.1839). The 1844 Constitution contained a bill of rights in Article I, and paragraph 5 of that Article provided:

Every 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. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

This language was carried over into our present Constitution. See N.J.Const. (1947), Art. I, par. 6.

The Proceedings of the Constitutional Convention of 1844 reveal that the press paragraph was copied from Article VII, section 8 of the New York Constitution of 1821. 2 New Jersey Writers' Project 144 (1942). The constitutional convention proceedings in New York and in New Jersey contain no reference to the first sentence in paragraph 5 relating to a person’s right to freely speak, write and publish subject to “being responsible for the abuse of that right.”

However, that thought had been expressed similarly by others. Blackstone had stated: “Thus the will of individuals is still left free; the abuse only of that free-will is the object of legal punishment.” 4 W. Blackstone, Commentaries 154 (4th Cooley ed. J. Andrews 1899). Lord Mansfield in King v. The Dean of St. Asaph, 3 TR 657, 661 (1784), had written: “The liberty of the press consists in printing without any previous license, subject to the consequence of law.” Lord Kenyon in King v. Cuthell, 27 Howell St. Tr. 675 stated “that a man may publish anything which ... is not blameable, but that he ought to be punished if he publishes that which is blameable.” Odgers in his treatise on libel wrote: “Any man is free to speak or to write and publish whatever he chooses of another, subject only to this, that he must take the consequences, should a jury deem his words defamatory. This is what is meant by ‘the liberty of the *208 press.’ ” W. Odgers, A Digest of the Law of Libel and Slander 11 (1st Am. ed. Bigelow 1881). Chief Justice Parker in Commonwealth explained: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse.... ” Commonwealth v. Blanding, 20 Mass. at 311 .

Language comparable to the several above quotations was inserted in the New York and New Jersey Constitutions. This terminology acknowledges the press’s responsibility for abusing its right to write and publish. The sense of the words is to protect those who would be defamed by irresponsible utterances.

This interpretation of Article I, paragraph 6 has been accepted by those courts which have reflected on it. In Leers v. Green, 24 N.J. 239 (1956), Justice Heher commented:

In this [statement in the Constitution] we have the very essence of the freedom of speech and of press secured by the 1947 State Constitution, Article I, paragraph 6, holding the actor “responsible for the abuse of that right,” (derived from the 1844 Constitution, Article I, paragraph 5) and also by the First Amendment to the Federal Constitution. [Id. at 254]

Sprinkled throughout our reports are other comments reflecting the substantive constitutional protection afforded the individual when the freedom of speaking, writing and publishing has been abused. See, e.g., State v. Boyd, 86 N.J.L. 75, 79 (Sup.Ct.1914) (“language tending to the violation of the rights of personal security and private property and toward breaches of the public peace is an abuse of the right of free speech for which by the very constitutional language invoked, the utterer is responsible”); Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 379 (1959) (reaffirming language of Leers).

The people of New Jersey have carefully guarded the individual’s right to damages for libelous statements. The Legislature has not abolished a cause of action for public figures or officials and I submit that it could not do so since the cause of action is constitutionally protected. The majority interprets the Shield Law, N.J.S.A. 2A:84A-21, to provide that the newsperson’s statutory privilege covers the source, the information (whether *209 disseminated or not) and editorial processes. As a result, in most cases a plaintiff’s ability to develop evidence relevant to the state of mind of the defendant will have been eliminated and thereby his constitutionally protected cause of action will have been obliterated.

Justice White commented in Herbert on the far-reaching effect of precluding a plaintiff from utilizing discovery with respect to editorial processing. He observed that by placing beyond plaintiff’s reach a range of direct evidence relevant to providing knowing or reckless falsehood by the publisher of an alleged libel, elements critical to plaintiffs may not be proven. He noted that foreclosing discovery of editorial processes would erect “an impenetrable barrier to the plaintiff’s use of such evidence” and “is a matter of some substance, particularly when defendants themselves are prone to assert their good-faith belief in the truth of their publications, and libel plaintiffs are required to prove knowing or reckless falsehood with ‘convincing clarity.’” 441 U.S. at 170 , 99 S.Ct. at 1645 , 60 L.Ed.2d at 130 . The majority asserts that the plaintiff may prove recklessness by showing that the publisher failed to seek independent verification of serious charges. However, the difficulty is that the plaintiff will not be able to prove the necessary ingredients. The reporter need not disclose the source, need not disclose his method of verification, need not disclose the identities of the verifiers, if any, need not explain why he considered the sources responsible, and need not disclose his editorial processing in whole or in part. A reporter, refusing to divulge any of this information, may comfortably rely on the assertion that his source, albeit only one, was reliable, thereby leading to the termination of the proceeding. See Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (2d Cir. 1977). An interpretation of the Shield Law which does what the Supreme Court in Herbert refused to do effectively eliminates a public official’s or *210 public figure’s 2 cause of action for defamation and conflicts with the state constitutional protection given to those individuals who have been wrongly and intolerably damaged by the “abuse of the right” of freedom of the press.

•However, this interpretation of the Shield Law is not necessary or warranted. The statute reads as follows:

Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere.

a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated or delivered; and

b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated. [L. 1977, c. 253, § 1, eff. Oct. 5, 1977; N.J.S.A. 2A:84A-21]

A careful reading of the statute indicates that the key to subdivision (a) is the identity of the third person who acted as a conduit of the information. The statute focuses on that identification, not on what the defendant newsreporter may do with the information. Subsection (a) does not refer to the defendant newspaper person’s editorial processes. It does not refer to his impressions of the facts gathered, his conclusions of their veracity, or his intentions as manifested by his editorial decisions.

In addition to the fact that the language of the statute does not support the interpretation placed upon it by the majority, the legislative history contains no suggestion that the Legislature intended to foreclose discovery into the defendant’s editorial processing. I do not believe the Legislature intended to adopt the “stunning” proposition that the defendant has an absolute privilege to resist the most direct form of inquiry into the *211 precise matter the plaintiff is required to prove with “convincing clarity.” See Comment, “Herbert v. Lando: Reporter’s Privilege From Revealing the Editorial Process in a Defamation Suit,” 78 Colum.L.Rev. 448, 453 (1978). As Justice Brennan in his dissenting opinion in Herbert v. Lando observed: “It would be anomalous to turn substantive liability on a journalist’s subjective attitude and at the same time to shield from disclosure the most direct evidence of that attitude.” 441 U.S. at 192 , 99 S.Ct. at 1657 , 60 L.Ed.2d at 144 . If there be any guide it is that the Legislature is aware of the principle that evidentiary privileges are not favored, precluding as they do a “rational means for ascertaining truth.” Elkins v. United States, 364 U.S. 206, 234 , 80 S.Ct. 1437, 1454 , 4 L.Ed.2d 1669,1695 (1960) (Frankfurter, J., dissenting). See also United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974); 8 Wigmore, Evidence § 2192 (McNaughton rev. 1961).

The majority asserts that occupants of the State House, including members of the state Legislature, should not be “meek and thin-skinned.” Yet it is more than the meek and thin-skinned who may refuse public office rather than expose themselves to possible public contempt and ridicule by an irresponsible reporter. Apparently persons within these categories should henceforth disqualify themselves from accepting any public office. Even more devastating is the fact that the Maressa doctrine will be applied to ordinary citizens attempting to voice their views in town meetings. See Lawrence v. Bauer Publishing & Printing, 89 N.J. 451, 474-75 (1982) (Schreiber, J., dissenting).

I would affirm the trial court’s order that defendants respond to those interrogatories and depositions addressed to their respective editorial processes.

For reversal and remandment—Chief Justice WILENTZ and Justices PASHMAN, CLIFFORD, HANDLER, POLLOCK and O’HERN—6.

For affirmance—Justice SCHREIBER—1.

it is also arguable that the right of an individual to protect his or her good name is secured by the constitutional right of “enjoying and defending . .. liberty, of acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.” N.J.Const. (1947), Art. I, par. 1. I have chosen to rely on Article I, par. 6 which speaks directly to a cause of action based on defamation.

The broad definition of a “public figure,” Lawrence v. Bauer Publishing & Printing, 89 N.J. 451, 463-65 (1982), makes the constitutional violation even more egregious.