Summary Judgment and the Actual Malice Standard in Defamation Cases
In Durando v. The Nutley Sun, the New Jersey Supreme Court confirmed that — absent clear and convincing evidence of actual malice — an admittedly incorrect “teaser headline” that refers readers to an accurate headline and story cannot be the basis of a defamation claim where a public figure or matter of public concern is at issue. By strictly adhering to this actual malice standard, the Court has reaffirmed the commitment of this State to protect speech regarding public figures and public matters, even erroneous speech, from the expense and chill of protracted litigation, by disposition of lawsuits at the summary judgment stage.
The Nutley Sun published an article with a “teaser headline” reading “Local men arrested in ‘pump and dump’ scheme.” But neither of the two subjects of the article had ever been arrested; rather they had been named as defendants in a civil SEC enforcement action, alleging they were involved in a “pump and dump” scheme. The “teaser” referred readers to an otherwise correct news story on page 11 which contained the headline “Local men charged in stock scheme” and described the $9 million civil fraud charge. The Nutley Sun’s editor, who was responsible for drafting the teaser headline, testified in a deposition that he had read an accurate article in another paper before drafting the headline, but could not recall why he chose to use the word “arrested”. While admitting that he had made a mistake, the editor testified he did not recall having any doubts about the headline’s accuracy when he wrote it.
The trial court granted summary judgment in favor of the Nutley Sun because of an absence of proof that the paper had acted with actual malice in publishing the headline. The Appellate Division affirmed.
The New Jersey Supreme Court affirmed as well, finding that the plaintiffs were required to establish that a reasonable jury could have concluded by clear and convincing evidence that Nutley Sun’s editor published the erroneous teaser with actual malice. In reviewing the summary judgment record, the Court concluded that the editor was “…undoubtedly careless,” but that the facts supported the view that the editor was guilty of nothing more than a mistake: the SEC complaint bespoke of criminality; the editor had a busy work schedule, including reading hundreds of pieces of correspondence each week; and the editor wrote the “teaser” during the most hectic night of the week because of the need to meet the printer’s deadline. Finally, plaintiffs were not named in the teaser. Their names surfaced only after a reader turned to page 11 and read the article. Based on this record, the Supreme Court concluded that there was insufficient evidence of actual malice to support a conclusion that a reasonable jury could find the existence of same by clear and convincing evidence.
The Court aptly noted that the defendants “can only take grim satisfaction with the outcome,” given the obviously careless reporting present. Notwithstanding this admonition, the Defendants and all media can take great satisfaction that the Court strongly affirmed the principle that mistakes, as opposed to calculated falsehoods, are inevitable in the area of free speech and that those mistakes, when the speech concerns public officials, public figures and matters of public interest and concern, should not give rise to liability lest all speech be chilled.
Justices Hoens and LaVecchia dissented, asserting that the majority opinion failed to appreciate the role of a front page teaser; failed to apply the ordinary standard for summary judgment of viewing the evidence in a light most favorable to the non-moving party and created a new standard raising even higher the bar a plaintiff must overcome to sustain such a claim.