Civil Model Jury Charge 3.11A PUBLIC DEFAMATION IN NJ

Civil Model Jury Charge3.11A PUBLIC DEFAMATION

NOTE TO JUDGE

The instructions set forth below apply only where the plaintiff is a

public official, public figure, or where the plaintiff is a private

person but the defamatory statements involve a matter of

legitimate public concern. SeeBerkery v. Kinney, 397N.J. Super.

222 (App. Div. 2007),certif. denied, 194N.J.445 (2008) in which

the court held that once a person becomes a public figure, even if

he/she subsequently adopts a private lifestyle, he/she remains a

public figure thereafter for purposes of later commentary or

treatment of that commentary. See Footnote 1 below for the cases

defining these terms.

1. General Element

For you to find that [plaintiff] is entitled to recover damages from

[defendant] for defamation, you must find by clear and convincing evidence1

that [defendant] communicated to a person other than [plaintiff] a false and

1The burden of proof imposed depends upon and is tied to the status of the plaintiff and the

subject matter of the defamatory statement. Where the plaintiff is a public official or a

public figure and the subject matter of the defamatory statement is a matter of legitimate

public concern, the standard of proof is clear and convincing evidence.See New York

Times v. Sullivan, 376U.S.254, 84S.Ct.710, 11L.Ed.2d 83 (1964);Gertz v. Robert Welch,

Inc., 418U.S.323, 945S.Ct.2997, 41L.Ed.2d 789 (1974);Lawrence v. Bauer Pub. Co., 89

N.J.451 (1982);Marchiano v. Sandman, 178N.J. Super.171 (App. Div.),certif. denied, 87

N.J.392 (1981);Vassallo v. Bell, 221N.J. Super. 347 (App. Div. 1987) [involving a limited

purpose public figure]. Where plaintiff is a private figure and the subject matter of the

defamatory statement is a matter of legitimate public concern, the standard of proof is also

clear and convincing.See Pitts v. Newark Bd. of Educ., 337N.J. Super.331 (2001);Burke v.

Deiner, 97N.J. Super.465 (1984);Costello v. Ocean County Observer, 136N.J.595 (1994).

The trial judge must make the determination as to the status of the plaintiff and whether the

statements complained of by a private person are a matter of legitimate public concern.See

Lawrence v. Bauer Pub. Co., supra;Dairy Stores, Inc. v. Sentinel Pub. Co., 104N.J.125

(1986);Rocci v. Ecole Secondaire, 165N.J.149 (2000) (The Supreme Court expands the

definition of what is deemed to be of public concern). See also Senna v Floriment, 196 N.J.

469 (2008)

CHARGE 3.11A Page 2 of 8

defamatory statement2of fact concerning [plaintiff] with actual knowledge that

the statement was false or with reckless disregard of its truth or falsity, thereby

causing [plaintiff] to incur actual damages.

[Plaintiff] must prove five elements by clear and convincing evidence to

prevail here. These five elements are: (1) that [defendant] made a defamatory

statement of fact; (2) concerning [plaintiff]; (3) which was false and (4) which

was communicated to at least one person other than [plaintiff] (5) with

[defendants] actual knowledge that the statement was false or with

[defendants] reckless disregard of the statements truth or falsity. I will now

explain each of these five elements.

2. Elements

a. That [defendant] made a defamatory statement of fact.

A defamatory statement is a statement of fact which is injurious to the

reputation of [plaintiff], or which exposes [plaintiff] to [choose applicable

category] hatred, contempt or ridicule, or to a loss of the good will and

confidence felt toward him/her by others, or which has a tendency to injure

him/her in his/her trade or business.3

2A defamatory statement may consist of libel or slander.Dairy Stores, Inc. v. Sentinel Publg

Co., 104N.J.125, 133, 516A.2d220 (1986) (citingProsser and Keeton on Torts 111 at 771

(5th ed. 1984)); Rodney A. Smolla,Law of Defamation 1:10 (2d ed. 2008).

3See Maressa v. New Jersey Monthly, 89N.J.176 (1982),certif. denied, 459U.S.907, 103

CHARGE 3.11A Page 3 of 8

To be defamatory, the statement must be a statement of fact. Statements

of opinion are not actionable. You must not consider them in any way.4

Here, the statement of fact alleged to have been made by [defendant] is

___________________. This may be interpreted in two ways: First, it may be

understood to mean ______________________. This meaning is clearly

defamatory to [plaintiff] if it exposed him/her to the contempt and ridicule of

others; it is in this sense that [plaintiff] contends that it was generally

understood. The second meaning, however, is _______________. In this sense,

of course, the statement is innocent and non-defamatory, and it is in this sense

that [defendant] contends it was understood.5

S.Ct.211, 74L.Ed.2d 169 (1982);Dairy Stores, Inc. v. Sentinel Pub. Co.,supra;Restatement

(Second) of Torts, Section 559 (1977).

4The trial court must preliminarily determine whether any of the statements complained of

are statements of opinion. If there are any statements of opinion in the publication

complained of, the jury must be instructed that these statements are privileged and are not to

be considered in any way in their deliberations.See Gertz v. Robert Welch, Inc.,supra;

Kotlikoff v. The Community News, 89N.J.62 (1983);Maressa v. New Jersey Monthly,supra;

Dunn v. Gannett New York Newspapers, Inc., 833F.2d 446 (3d Cir. 1987);Karnell v.

Campbell, 206N.J. Super.81 (App. Div. 1985);Restatement (Second) of Torts, Section 566

(1977).

5The trial court must preliminarily determine whether the statement is defamatory on its

face. Only when the court finds that a statement is capable of both a defamatory and

non-defamatory interpretation is the issue to be submitted to the jury. SeeLawrence v. Bauer

Pub. Co.,supra; Romaine v. Kallinger, 109N.J.282, 290-91 (1988);State v. Browne, 86N.J.

Super.217 (App. Div. 1965);Sokolary v. Edlin, 65N.J. Super.542 (App. Div. 1961);Mosler

v. Whelan, 48N.J. Super.491 (App. Div.),revd, 28N.J.397 (1958). When the statement is

only capable of a defamatory interpretation, the plaintiff need not establish this element and it

should be eliminated from the instruction.

CHARGE 3.11A Page 4 of 8

You must determine, in light of all the evidence, if the words used by

[defendant] were understood in their defamatory sense by the reasonable person

who read [heard] them. In this regard, you are, of course, free to consider the

common and ordinary meaning of the words used in the context of the

statement, but bear in mind that your deliberations are not to be governed solely

by what you yourselves believe to be the meaning of the language used nor,

indeed, by what you personally believe [defendant] intended to be understood.

The test is what you find from all the evidence the words were understood to

mean by the reasonable person who read [heard] them.6

b. The plaintiff must prove that the defamatory statement

concerned the plaintiff.

The second element that plaintiff must prove by a preponderance of the

evidence is that the defamatory statement was read [heard] and understood by at

least one other person to concern [plaintiff].7The defamatory statement read

[heard] by at least one person other than [plaintiff] was reasonably understood

by them to refer to [plaintiff]. The actual naming of [plaintiff] is not necessary

so long as those who read [heard] the statement understood that [plaintiff] was

6See Restatement (Second) of Torts, Section 563 (1977).

7See Gnapinsky v. Goldyn, 23N.J.243 (1957);Scelfo v. Rutgers Univ., 116N.J. Super.403

(Law Div. 1971);Dijkstra v. Westerink, 168N.J. Super.128 (App. Div. 1978);Restatement

(Second) of Torts, Sec. 564 (1977). Where the defamatory statement concerns a group or

class of persons of which plaintiff is a member, the plaintiff must establish some reasonable

application of the words to himself/herself.See Mick v. American Dental Assn, 49N.J.

Super.262, 285-87 (App. Div. 1958);Restatement (Second) of Torts, Section 564A (1977).

CHARGE 3.11A Page 5 of 8

the subject of the statement. You are not to decide whether [defendant]

intended the statement to refer to [plaintiff]; the issue is whether those persons

reading [hearing] the statement reasonably understood the statement to refer to

[plaintiff].

c. Plaintiff must prove that the defamatory statement is false.

The third element that [plaintiff] must prove by a preponderance of the

evidence is that the defamatory statement was false.8Here, [plaintiff] contends

the defamatory statement is false; [defendant] denies that the statement is false.

You must determine if the statement is true or false. In this regard, it is not

necessary for you to find the statement true or false in every detail. It is enough

if the defamatory gist or sting of the statement is substantially true or

substantially false. In determining the truth or falsity of the statement, you must

consider the entire context of the statement; words or phrases must not be

isolated or taken out of context.

8See Pitts v. Newark Bd. of Educ., supra;Rocci v. Ecole Secondaire, supra(where the

Supreme Court stated that defamation exists where the defendant otherwise acted with

reckless disregard of truth);also seefootnote 10 concerning the fifth element as to definition

in defamation law of the term actual malice.Philadelphia Newspapers, Inc. v. Hepps, 475

U.S.767, 106S.Ct.1558, 89L.Ed.2d 783 (1986);Sisler v. Gannett Co. Inc., 104N.J.256

(1986);Herrmann v. Newark Morning Ledger Co., 48N.J. Super.420 (App. Div. 1958),affd

on rehg, 49N.J. Super.551 (App. Div. 1958);LaRocca v. New York News, Inc., 156N.J.

Super.59 (App. Div. 1978);Scelfo v. Rutgers Univ.,supra;Dorney v. Dairymens League

Co-op. Assn, 149F. Supp.615 (D. N.J. 1957);Restatement (Second) of Torts, Section 581A

(1977).

CHARGE 3.11A Page 6 of 8

d. Plaintiff must prove that the defamatory statement was

communicated to a person or persons other than the plaintiff.

The fourth element [plaintiff] must prove by a preponderance of the

evidence is that the defamatory statement was communicated, orally or in

writing, to at least one person other than [plaintiff].9Therefore, it is not

necessary that the defamatory statement be communicated to a large or

substantial group. It is enough that it is communicated to a single person other

than [plaintiff], so long as that recipient understood the statement in its

defamatory sense.10

e. Plaintiff must prove that defendant communicated the false

statement to others with the actual knowledge that it was false

or with a reckless disregard of whether it was true or false.

The fifth element plaintiff must prove by a preponderance of the evidence

is that, when the statement was communicated to at least one other person by

[defendant], [defendant] knew that the statement was false or acted in reckless

disregard of whether it was true or false.11This means that [defendant] must

9See Gnapinsky v. Goldyn,supraat 252-53;Restatement (Second) of Torts, Section 577

(1977). Note that the communication of a defamatory statement to a third person may be

qualifiedly privileged.Seetext and footnotes on Qualified Privilege under Private

Defamation (Charge 3.11B),infra.

10SeeComments b and c toRestatement (Second) of Torts, Sec. 577 (1977).See Rocci v.

Ecole Secondaire, supra;Pitts v. Newark Bd. of Educ., supra. (The courts have held that a

plaintiff should not be able to recover for the harm flowing from republication of a

defamatory statement when the plaintiff himself/herself knowingly causes the material to be

distributed).

11The plaintiff must prove actual malice which exists when a defendant has actual

knowledge that the statement he/she is making is false or when he/she entertains serious

CHARGE 3.11A Page 7 of 8

have actually known that the defamatory statement regarding [plaintiff] was

false when he/she communicated it, or that [defendant] communicated the

defamatory statement with a high degree of awareness that it was probably false,

or that [defendant] truly had serious doubts as to the truth of the defamatory

statement when he/she communicated it.

3. Burden of Proof

[Plaintiff] must prove each of the five elements I have just explained to

you by clear and convincing evidence. Clear and convincing evidence means

that proofs should produce in your minds a firm belief or conviction as to the

truth of the claims made by [plaintiff]. The evidence must be as clear, direct and

weighty and convincing as to enable a jury to come to a clear conviction,

without hesitancy, of the truth of precise facts in issue.12Clear and convincing

is a standard of proof which requires more than a mere balancing of doubts or

probabilities. It requires clear evidence which causes you to be convinced that

the allegations sought to be proved are true.

doubts as to its truth.See Pitts v. Newark Bd. of Educ., supra;Burke v. Deiner,supra;see

New York Times v. Sullivan,supra;Garrison v. Louisiana, 379U.S.64, 85S.Ct.209, 13L.Ed.

2d 125 (1964);St. Amant v. Thompson, 390U.S.727, 88S.Ct.1323, 20L.Ed.2d 262 (1968);

Lawrence v. Bauer Pub. Co.,supra;Marchiano v. Sandman,supra;Binkewitz v. Allstate Ins.

Co., 222N.J. Super.501 (App. Div.),certif. denied, 113N.J.378 (1988).

12Aiello v. Knoll Golf Club, 64N.J. Super.156, 162 (App. Div. 1960);see Matter of Jobes,

108N.J.394, 407 (1987);State v. Hodge, 95N.J.369, 376 (1984).

CHARGE 3.11A Page 8 of 8

If [plaintiff] proved each of the five elements I have outlined by clear and

convincing evidence, [plaintiff] has met his/her burden of proof and is entitled to

your verdict. If, however, [plaintiff] has failed to prove by clear and convincing

evidence any of these elements, you must return a verdict for [defendant].