Lavin v. New York News, Inc.

OPINION OF THE COURT

FULLAM, District Judge.

In this appeal from a grant of summary judgment dismissing a libel case, we are again required to address issues involving New Jersey’s fair report privilege, recently canvassed in Schiavone Construction Co. v. Time, Inc., 735 F.2d 94 (3d Cir.1984).

In Schiavone, we reversed a dismissal under Fed.R.Civ.P. 12(b)(6), because it could not properly be ruled as a matter of law that plaintiff would be unable to establish abuse of the fair report privilege on the part of the defendants. The present case was decided on cross-motions for summary judgment; coincidentally, by the same district judge whose decision was reviewed in Schiavone.

I. FACTS

Plaintiff is a Bayonne, New Jersey, police official who claims to have been defamed by an article appearing in the March 7, 1983 edition of the “New York Daily News”.

It appears that, over the course of several years, the FBI conducted a far-reaching investigation of organized crime activities in the New York-New Jersey area, particularly along the waterfront. In the course of that investigation, in May 1982, an FBI agent applied to a federal judicial officer in the Southern District of New York for a search warrant, and in support of the application, presented the court with a 165-page affidavit outlining the results of the investigation. Approximately 6Va pages of the affidavit, under the heading “Police Corruption”, discussed the allegedly improper relationships between persons associated with organized crime (“the DiGilio Group”) and members of the Bayonne, New Jersey Police Department. The affidavit and related papers remained under seal until some time around October of 1982; upon expiration of the district court’s impoundment order, the affidavit and related papers became matters of public record.

A reporter for the defendant newspaper first became aware of the affidavit and its contents in early March 1983. The newspaper account claimed by plaintiff to be defamatory was based, in large part, upon the affidavit. The page 1 headline reads:

“THE MOB:

“BEST COPS MONEY CAN BUY

“Second of series, page 5”

At the top of page 5 of the newspaper appeared the four-column headline: “BEST COPS MONEY CAN BUY”. Immediately beneath the headline, on the left, appeared a two-column photograph of plaintiff and another police official, both identified by name and title. To the right of this photograph, the two-column text of the newspaper article begins. In pertinent part, the' text of the article reads as follows:

“FBI agents who investigated New York mob operations in New Jersey concluded that the city of Bayonne has the best police force money can buy.

“The six-year probe focused on criminal activities of the DiGilio Group, a Bayonne-based mini-mob____

“Results of the investigation were described in a 165-page affidavit filed in federal court to support a request for search warrants authorizing FBI agents to seize evidence from mob members, their homes and offices.

“In the affidavit, FBI agents reported: ‘The evidence developed during the electronic surveillance (of DiGilio and his crew) established that DiGilio is able to conduct his various criminal activities with a significantly diminished risk of detection because he and some of his associates have developed a corrupt relationship with certain police officials.’

“The Daily News obtained a copy of the affidavit. Much of the information in it was obtained from electronic surveillance of gang members and from several inside ‘sources’, or informers, who were members of the DiGilio Group.

“The FBI papers said two of these sources ‘separately reported that Bayonne Public Safety Director James Sisk received bribe payments from DiGilio.’

“The affidavit also mentioned Deputy Police Chief Thomas Lavin, Commander of the Bayonne Police Department’s Detective Bureau, and Detective Peter Dugan.”

Next appeared two paragraphs relating to the DiGilio Group, Sisk, and others. The only further references to plaintiff are these:

“In interviews with The News, the three Bayonne police officers and Conaghan denied the allegations and insisted they had never been involved in bribe-taking or other wrongdoing.”

[A reference to an electronically recorded conversation in which a crime figure is reported to have stated that a Bayonne police officer who was attempting to gather evidence against the DiGilio Group was being punished by the Department to discourage such activity “because ... Lavin and everyone in the Police Department were giving the officer the cold shoulder”.]

“Interviewed by The News in Sisk’s office at the Bayonne Municipal Building, Sisk and Lavin both denied accepting bribes or doing favors for DiGilio. They said they had been investigating him and his associates since 1968.

“ ‘We brought DiGilio to the FBI’s attention’, Lavin said. ‘We were the first to investigate DiGilio. There’s no way a relationship exists between him and us____’”

Plaintiff argues that the combined effect of the headlines and the photograph is an accusation that plaintiff was guilty of taking bribes; and that the text of the'article in its entirety amounts to a statement that the FBI agents, in an official document, had accused plaintiff of taking bribes. In plaintiff’s view, the FBI affidavit, fairly read, does not accuse him of taking bribes; and the only factual references to plaintiff in the affidavit are entirely consistent with the proper and legitimate performance of his duties as head of the Internal Affairs Division of the Police Department, charged with investigating complaints against or about police officers.

In an oral ruling from the bench, the district court granted defendant’s Motion for Summary Judgment. Plaintiff appeals.

II. DISCUSSION

The substantive law to be applied is that of New Jersey. As in Schiavone, supra, the parties have assumed as much, and we see no reason to adopt a different approach. Moreover, on the controlling issues, we are aware of no significant difference between New Jersey law and that of any other state whose law might conceivably be relevant.

On the other hand, the standards for granting summary judgment pursuant to Fed.R.Civ.P. 56 are matters of federal law. In this case, the bench opinion of the district judge can reasonably be interpreted as expressing the view that, because of First Amendment concerns, summary judgment is more easily obtainable by a media defendant in a defamation case than by defendants in other cases.¹ We reject that approach. A substantial dispute of material fact does not disappear merely because a media defendant is being sued, or because a public official is the plaintiff; and plaintiffs right to a jury trial is entitled to no less respect. Proper application of the fair report privilege fully vindicates the defendants’ First Amendment rights; carving out exceptions to Fed.R.Civ.P. 56 is neither permissible, nor helpful.

Although the district court may have applied an erroneous standard in ruling on the summary judgment motion, we can nevertheless affirm if our review of the record yields the conclusion that application of the proper standard would produce the same result. That is, we must determine whether there is any material dispute of fact which, if resolved in plaintiff’s favor, would support the imposition of liability against the defendants.

It is conceded that the newspaper article was, and purported to be, an account of what appeared in the FBI affidavit; and that this affidavit was an official, public, document. In short, everyone agrees that the fair report privilege is applicable. The question is whether the privilege was abused.

The privilege extends to an “accurate, complete, and fair abridgement” of the official document. See Schiavone, supra, 735 F.2d at 97; Medico v. Time, Inc., 643 F.2d 134 (3d Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981). Conversely, the privilege is abused, and therefore lost, if the account is inaccurate, misleadingly incomplete, or unfair. Whether abuse of the privilege has been shown is ordinarily a question for the jury, “unless the facts are such that only one conclusion can reasonably be drawn”. Restatement' (Second) of Torts § 619(2) comment b; see also Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 382, 149 A.2d 193, 206 (1959).

The Restatement (Second) of Torts has been largely adopted as the law of New Jersey in this area:

“It is not necessary that [the account] be exact in every immaterial detail____ It is enough that it conveys to the persons who read it a substantially correct account of the [contents of the official document],

“Not only must the report be accurate, but it must be fair. Even a report that is accurate so far as it goes may be so edited and deleted as to be misleading. Thus, although it is unnecessary that the report be exhaustive, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who heard or read it, as for example ... the use of a defamatory headline in a newspaper report, qualification of which is found only in the text of the article.”

Restatement (Second) of Torts § 611, comment f (1977), quoted in Reilly v. Gillen, 176 N.J.Super. 321, 328, 423 A.2d 311, 315 (App.Div.1980). A fair distillation of the standard is this: Do the affidavit and the article have equal “sting”? See Brown and Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 271 (7th Cir.1983); Molnar v. Star Ledger, 193 N.J.Super. 12, 471 A.2d 1209 (App.Div.1984).

Upon careful comparison of the offending article and the FBI affidavit, certain arguable differences are discernible. The newspaper article can be interpreted as asserting that the FBI affidavit accused plaintiff of accepting bribes.² Actually, the only direct statements in the FBI affidavit on the subject of bribery involve Sisk and another officer, not this plaintiff.

Viewed in isolation, the headlines appear to be statements of the defendant newspaper, not a reference to the contents of an official document. And the words “BEST COPS MONEY CAN BUY” do not appear in the FBI affidavit; indeed, the affiant did not purport to measure the extent of corruption, or express any comparisons between the Bayonne Police Department and other police departments.

The question is whether these discrepancies suffice to enable a reasonable fact-finder to conclude that the article is not a fair, accurate, and complete reflection of the FBI affidavit. In answering that question, it is appropriate to point out that, although the FBI affidavit does not actually state that plaintiff was guilty of accepting bribes, it does contain other accusations against plaintiff which are not referred torn the newspaper article. The affidavit recounts wiretap evidence of telephone conversations between plaintiff and Gallagher (allegedly the DiGilio “bagman”), and between Gallagher and DiGilio referring to plaintiff, a late-night visit by plaintiff to Gallagher’s home, etc., which strongly support the FBI’s stated conclusion that the DiGilio group was being protected by the Bayonne police, and that plaintiff was an integral part of that corrupt relationship.

In the final analysis, the issue is not whether the affidavit included direct evidence of the payment of money to plaintiff, but whether, fairly read, the affidavit asserts that the FBI had concluded that plaintiff was corrupt. In our view, the affidavit undoubtedly amounts to an assertion that plaintiff was directly involved in a corrupt relationship with members of organized crime in the Bayonne, New Jersey, area.

We hasten to add that, given the present procedural posture of the case, we must assume that the FBI affidavit was false in every particular, and that plaintiff was and is entirely innocent, and was merely carrying out appropriately his duties as head of the Internal Affairs Department. But whether the FBI agents misinterpreted the situation, had incorrect information, or even consciously misstated the facts in the affidavit, there can be no liability on the part of the defendants for republishing the contents of an official document, so long as their account is reasonably accurate and fair. We hold, as a matter of law, that it was.

Arguably, the headlines should have made clear that the characterization “BEST COPS MONEY CAN BUY” was being attributed to the FBI, rather than the defendant newspaper itself. On the other hand, the front-page headline does not, by any stretch of the imagination, implicate plaintiff. The page 5 headline, together with the photograph, does implicate plaintiff, but its meaning is immediately clarified by the lead paragraph of the article. All in all, we are not persuaded that a reasonable fact-finder could conclude that the headlines, photograph, and article, separately and together, are more pejorative than the FBI affidavit.

One further issue requires brief discussion. There is, at least arguably, some uncertainty as to whether, under New Jersey law, the fair report privilege is defeated by proof of “malice in fact.” As noted in Schiavone, supra, New Jersey courts uniformly followed § 611 of the original Restatement of Torts, which provided that the fair report privilege would be defeated upon proof that the report was “made solely for the purpose of causing harm to the person defamed”. The present Restatement asserts that the motive of the publisher is immaterial. A New Jersey statute which at least partially codifies the common law privilege includes the words “unless malice in fact be shown by the plaintiff”. N.J.Stat,Ann. § 2A:43-1 (West Supp.1984-85).

In Schiavone, the panel opinion predicted that the New Jersey courts would continue to apply the rule that the privilege is defeated by proof of actual intent to harm (“malice in fact”). Nothing has occurred in the interim to cast doubt upon that prediction. Accordingly, we conclude that “malice in fact” can defeat the fair report privilege.

Under the original Restatement view, plaintiff would need to prove that the sole reason for the defendant’s republication of the official document was to cause harm to the plaintiff. At the very least, it seems to us, it would be necessary under the present law of New Jersey to establish that the statements in the official document were false and defamatory; that the defendant knew, or believed, that they were false; and that, in republishing the defamatory material, the defendant was motivated, at least in substantial part, by a desire to cause harm to. the plaintiff.

Plaintiff’s Complaint in this case does not adequately charge that kind of malice. The only allegation bearing on that issue is contained in If 13 of plaintiff’s Complaint, which reads as follows:

“13. The article, headline and picture were written, laid out and published by the defendants with knowledge that the impression conveyed, both by express words, photograph and by innuendo, was not truthful or, at the very least, the defendants recklessly disregarded the truth.”

This allegation suffices to prevent dismissal under the standards established in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). But the fact that the defendants were merely republishing assertions made in an official document — ie., the fact that the fair report privilege arises — provides an extra layer of protection to the media defendants. Plaintiff must allege and prove actual knowledge of falsity, and actual intent to injure.

We review the record as it stood when the district court entered judgment. At that point, no contention that the defendants had forfeited the privilege by virtue of intent to harm was presented to the district court, nor has that issue been preserved for appellate review. Moreover, given the undisputed facts, and the assertions of plaintiff in the affidavits submitted to the district court, it seems highly unlikely that an allegation of malice in fact, as herein defined, could be made in good faith.³

III. CONCLUSION

The judgment will be affirmed.

1 . The district court ruling included the following statements: "I will agree with you that the information in the affidavit does not go as far as Lavin is concerned as it goes against Sisk and perhaps others. And it may well be that this configuration had an effect of giving somebody an idea there was more pejorative mention of Lavin in the FBI affidavit than there really was. [A29] ... I think we would defeat the whole purpose of a constitutional protection if judges, because of a fear that there might possibly be somebody in the world who would disagree with them, are reluctant to grant summary judgment.” [A31]

2 . Judge Sloviter believes that the newspaper article, fairly read, cannot reasonably be interpreted as asserting that the FBI’s affidavit accused plaintiff of accepting bribes. Nothing affirmatively states that the FBI ever made such an accusation and the article is specific in identifying which officers were accused of taking bribes and Lavin's name was not among them. She believes that the only reasonable conclusion that can be drawn from that omission is that Lavin was not named in the affidavit as a bribe-taker because, if he had been, the article surely would have stated that. However, even assuming arguendo that the juxtaposition of the newspaper article, the photograph, and the headline could be interpreted as meaning that the FBI affidavit accused plaintiff of accepting bribes, she agrees with Judge Fullam that a reasonable fact finder could only conclude that the article is a fair, accurate, and complete reflection of the affidavit. The article and the affidavit had an equal sting, since both amounted to assertions that Lavin was corrupt.

3 . In his affidavit, plaintiff asserts that, when the reporter interviewed plaintiff and Sisk together, plaintiff was not actually asked whether he had taken a bribe (and therefore did not make any statement one way or the other on that subject); and that the photograph was obtained by trickery (¿.e., without warning, as the reporter was concluding the interview). There is no suggestion of personal animus.