Pa. ruling reminds press about truth — the whole truth
Though the Pennsylvania Superior Court’s Aug. 14 decision in Krajewski v. Gusoff does not change the law, it reminds the news media and the people they cover that literal truth is not always a defense.
On the surface, the facts in Krajewski suggest that the Northeast Times of suburban Philadelphia should be accepting a Pulitzer, not defending itself against a lawsuit — a small newspaper blows the whistle on a Philadelphia councilwoman who promises to retire from her post, changes her mind, retires for one day in order to collect a $275,000 public pension payment and then later maintains that the city cannot afford to keep open a local library.
Below the surface, though, are facts the Northeast Times allegedly ignored, facts that the councilwoman claims tell a different story. Therefore, even though everything the newspaper published was literally true, the court in Krajewski held the councilwoman’s case could proceed.
Joan Krajewski served on the Philadelphia City Council from 1979 through January 2012. As a councilwoman, she was eligible to participate in the city’s Deferred Retirement Option Plan. An employee who elects to participate in the plan, however, must commit to retire within four years.
After starting a four-year term in 2004, Krajewski decided to retire at the end of that term and accordingly enrolled in the plan. At the time, Krajewski’s city salary was approximately $120,000 a year. After Krajewski enrolled, a significant portion of her salary was paid into a tax-deferred, interest-bearing account.
As the end of her term neared, Krajewski changed her mind and asked the city’s legal counsel how she could withdraw from the plan.
The city’s lawyer told Krajewski that she could not withdraw from the plan but told her that, if she won re-election, should could retire for one day at the end of her existing term. That “retirement” would allow Krajewski to fulfill her commitment to the plan (and collect her one-time payment) and then return for her new term.
Krajewski followed this advice and, upon winning the November 2007 election, retired for one day. Krajewski shortly thereafter received a plan payment of almost $275,000.
Although the Northeast Times endorsed Krajewski in the election, it soured on her after learning about the payment. On Jan. 10, 2008, the newspaper published a “plea” urging the city to prohibit council members from participating in the plan and noting that:
“By the way, Councilwoman Joan Krajewski, who’s collecting about $300,000 in retirement benefits even though she is not retiring, claims that she has not received a single call from citizens complaining about her acceptance of the bonanza. Readers, call Joan Krajewski’s City Hall office and instruct her not to rip you off.”
A week later, the Northeast Times referred to Krajewski and others as “greedy politicians” and called the legal opinion on which Krajewski had relied the “Krajewski Clause.”
The newspaper raised the issue again in December 2008, when the city for budgetary reasons closed a branch of the public library in Holmesburg. The Northeast Times devoted a full opinion page to the issue, publishing an editorial, an editorial cartoon and a letter to the editor.
In its editorial, the newspaper said the mayor could reverse the closure decision:
“He has the power to work with City Council to come up with a stopgap measure to keep [the library] open. Whether that means shifting money around in the City’s operating budget to keep the library open, finding emergency funding to preserve it for another 90 days, or sitting down with Councilwoman Joan ‘I’ll retire for one day just to collect my DROP money’ Krajewski to persuade her to donate her $300,000 of ill-gotten gains to save the library, he can do it.”
The editorial cartoon similarly suggested a connection between the library closure and Krajewski’s retirement payment, and the letter to the editor characterized Krajewski’s acceptance of the payment as “stealing” from her constituents.
Krajewski sued the following December, claiming that the Northeast Times had defamed her and invaded her privacy by portraying her in a false light. Specifically, Krajewski claimed the Times had falsely accused her of theft, falsely implied that she could withdraw from the retirement plan, falsely suggested that the retirement-plan funds were the city’s and inaccurately implied a relationship between Krajewski’s plan payment and library closure.
The trial court dismissed the lawsuit, holding that much of what the paper had published was opinion, that the paper had not published a false statement of fact and that Krajewski’s false-light claim could not proceed because the publications were about matters of public concern.
On appeal, the Pennsylvania Superior Court reinstated the portions of Krajewski’s defamation claim concerning the library closure and her false-light claim. In doing so, the court clarified that, under Pennsylvania law, a false-light claim can proceed even if the publication addresses a matter of public concern.
In reinstating part of Krajewski’s defamation claim, the court relied on the U.S. Supreme Court’s 1990 decision in Milkovich v. Lorain Journal, in which the high court held that a statement of opinion about a public official is actionable if the statement “reasonably implies false and defamatory facts” and if the speaker knew the implication was false or acted with reckless disregard of its truth.
In Krajewski’s case, the Pennsylvania court held, a jury reasonably could find that the Northeast Times knowingly and falsely linked the retirement-plan payment and the library closure.
“[T]hese pieces, when considered together in the context in which the paper’s editors placed them,” the court wrote, “might suggest to the average reader that Krajewski acted to the detriment of her constituents in accepting a large payout of public funds that might otherwise have sustained a branch of the Philadelphia Free Library.
“In truth,” the court continued, “the funds paid out, with the exception of interest paid on Krajewski’s underlying contributions, were not public funds, but were a mandatory payout from Krajewski’s pension. Hence, they were her money. Moreover, the funds had been paid almost one year before the publicized closing of the library, and thus, could not possibly be related to it.”
Krajewski’s false-light claims, the court held, should be reinstated because the trial court incorrectly (but understandably, given the confusion of Pennsylvania law on the issue) held that a false-light claim must be based on a private matter.
Pennsylvania law, the appellate court wrote, contains no such requirement. Instead, “false light invasion of privacy offers redress not merely for the publication of matters that are provably false, but also for those that, although true, are selectively publicized in a manner creating a false impression.”
The court then observed that the U.S. Supreme Court and other courts already had grappled with First Amendment concerns raised by potential false-light claims and had resolved those concerns by requiring a person bringing such a claim to prove that the speaker intentionally implied a falsehood or recklessly created a false implication.
“Arguably,” the Pennsylvania court wrote, “the ‘calculation’ necessary to imply falsity through the use of what may be otherwise true statements counsels a limitation of the protection to which the resulting portrayal is subject. True statements should speak for themselves, subject only to the critical analysis and judgment of the reader, and devoid of the deliberate confabulation at which the state law cause of action for false light is directed.”
In this case, the court said it believed that a jury could find such confabulation in the Northeast Times’ coverage of the library closure.
“[S]ignificant indicia of falsity is apparent in the Northeast Times’ treatment of the Holmesburg Library closing,” the court wrote, “suggesting a causal relationship the paper could not document, and an obligation by Krajewski to disgorge a meal from the public trough that, arguably, she had not consumed.”
At least since the decision in Milkovich, the news media have been as much — if not more — at risk for what they have not published as for what they have. So far, though, while there have been occasional verdicts in favor of plaintiffs alleging false light, these verdicts have not been widespread, likely because plaintiffs have found it difficult to prove knowing falsity or recklessness.
Nevertheless, as Krajewski reminds both potential claimants and defendants, false-light claims cannot be ignored.