Durando v. Nutley Sun
40 Media L. Rep. (BNA) 1461, 209 N.J. 235, 37 A.3d 449 (2012)
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Rule of Law:
In New Jersey, a media defendant is not liable for defamation or false light concerning a matter of public concern unless the plaintiff proves by clear and convincing evidence that the defendant published the false statement with actual malice, meaning knowledge of its falsity or reckless disregard for the truth, even if the reporting was careless.
Facts:
- On November 15, 2005, the Securities and Exchange Commission (SEC) filed a civil complaint in the United States District Court for the District of Connecticut against Ronald Durando and Gustave Dotoli, charging them with various violations of federal securities laws, including a “pump and dump” scheme.
- On November 17, 2005, The Record, a newspaper owned by North Jersey Media Group, published an article by Kathleen Lynn accurately describing the SEC's civil complaint against Durando and Dotoli; the article did not mention any arrests.
- On December 5, 2005, Paul Milo, executive editor of The Nutley Sun (also owned by North Jersey Media Group), prepared Lynn's article for reprint in his weekly newspaper, shortening it and giving it a new headline: “Local men charged in stock scheme.”
- On December 6, 2005, Milo composed three 'teasers' for the front page of The Nutley Sun's December 8 edition, one of which erroneously read: “Local men arrested in ‘pump and dump’ scheme, page 11.”
- The December 8 edition, containing the erroneous front-page teaser, was a promotional issue circulated to 2500 non-subscribers in addition to regular subscribers.
- On December 9, plaintiffs' attorney emailed The Nutley Sun, pointing out that Durando and Dotoli had not been arrested and demanded a retraction, threatening to file suit.
- Milo later testified during a deposition that he 'made a mistake' in using the word 'arrested' and did not recall his exact thought process, but then clarified that he harbored no doubts about its accuracy at the time of writing.
Procedural Posture:
- On November 15, 2005, the Securities and Exchange Commission (SEC) filed a civil complaint against Ronald Durando and Gustave Dotoli in the United States District Court for the District of Connecticut.
- On December 16, 2005, Ronald Durando and Gustave Dotoli (plaintiffs) filed a civil action against The Nutley Sun and North Jersey Media Group, Inc. (defendants) in a New Jersey trial court, alleging libel.
- Plaintiffs later filed an amended complaint, adding claims for false light and intentional and negligent infliction of emotional distress.
- The trial court initially denied summary judgment on the false-light claim but later reconsidered and granted summary judgment in favor of defendants on all claims, dismissing the complaint, finding no sufficient evidence of actual malice.
- The Appellate Division affirmed the trial court's decision, finding no clear and convincing evidence of actual malice to warrant a jury trial on defamation or false light claims. Plaintiffs then appealed to the Supreme Court of New Jersey.
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Issue:
Does a regional weekly newspaper publish a false front-page teaser with actual malice when an executive editor, under deadline pressure, mistakenly uses the word 'arrested' to describe individuals who were the subject of a civil SEC complaint, and the article on an internal page correctly identifies the complaint as civil?
Opinions:
Majority - Justice Albin
No, a newspaper does not publish a false front-page teaser with actual malice when an executive editor, under deadline pressure, mistakenly uses 'arrested' for individuals facing a civil complaint, and the full article correctly describes the civil nature of the complaint. The Court affirmed the lower courts' grant of summary judgment, finding that the summary-judgment record did not support a finding by clear and convincing evidence that the editor, Paul Milo, knowingly or in reckless disregard of the truth published the false teaser. New Jersey's common law provides enhanced protection for speech on matters of public concern, requiring actual malice—knowledge of falsity or reckless disregard of the truth—even for careless falsehoods. The actual malice standard is subjective, focusing on whether the defendant 'in fact entertained serious doubts as to the truth of the publication,' not whether a reasonably prudent editor would have acted differently. Despite Milo's 'shoddy editing' and admitted mistake, the evidence, even viewed most favorably to the plaintiffs, did not show that his conduct 'approached the level of publishing a knowing, calculated falsehood.' The article described conduct that 'bespeaks criminality,' and the full article on page eleven clarified the civil nature of the complaint, which any reader turning to that page would see. Milo's post-deposition clarification that he believed the teaser was accurate at the time of publication, combined with his busy schedule and the lack of evidence that he actually doubted its veracity, meant plaintiffs failed to meet the clear and convincing evidence standard required to survive summary judgment in a defamation case involving public concern.
Dissenting - Justice Hoens
Yes, there was sufficient evidence for a jury to conclude that the newspaper published the false front-page teaser with actual malice, thus summary judgment was inappropriate. Justice Hoens dissented, arguing that the majority made three fundamental errors: misperceiving the relevance of a front-page teaser, failing to weigh factual assertions in accordance with summary judgment standards, and effectively creating a new standard for protecting journalistic practices that it itself criticizes. Unlike a misleading headline immediately corrected by an accompanying article, a teaser is a free-standing, attention-grabbing headline, especially when in larger font and for a promotional issue, meaning a reader may not seek out the accurate article. The dissent contended that the majority accepted facts and inferences favorable to the defendant rather than the plaintiffs. Milo's choice of the word 'arrested,' despite knowing the difference between civil and criminal proceedings, his decision to use it in a prominent teaser for a promotional issue, and his deletion of paragraphs that reiterated the civil nature of the complaint, constituted evidence from which a jury could infer reckless disregard. Furthermore, Milo's initial deposition testimony that he 'might have had doubts' about the accuracy, before changing his story after conferring with counsel, raised credibility questions that should have been resolved by a jury, not the court. The dissent argued that the majority's decision effectively shields newspapers if an editor simply claims to be busy or denies doubt, making it an 'impossible burden' for defamed plaintiffs to overcome.
Analysis:
This case reinforces the high bar for proving actual malice in defamation and false light claims against media defendants in New Jersey, especially when the speech concerns matters of public interest. It emphasizes that 'shoddy' or 'careless' journalism, while regrettable, does not automatically meet the actual malice standard; plaintiffs must demonstrate the defendant actually doubted the truth or knew it was false. The ruling underscores the importance of summary judgment in protecting the press from costly litigation, even against a backdrop of admitted error. This could make it more challenging for private individuals to successfully sue media outlets for reporting errors, particularly when the articles touch upon public affairs, unless there is compelling evidence of a subjective awareness of falsity.
