Ruling in libel case puzzles legal experts

Thursday, January 13, 2000

A recent New Jersey appeals court ruling requiring the Nutley Journalto prove it did not act with actual malice against a former public official is inconsistent with both federal law and the state judiciary's history of respecting press freedom, according to the newspaper's attorney and several legal experts.

A three-judge panel ruled Jan. 4 that former Belleville mayor Marina Perna's libel suit against the Essex County weekly may proceed because the newspaper failed to prove why the complaint should be dismissed. Perna, a commercial office developer in Nutley, complained that the paper published three articles implying that she received an improper property tax discount on one of her buildings.

The Journal's lawyer, Al McGimpsey, says the ruling is disturbing and confusing because it appears to break with established rules requiring plaintiffs to justify why a libel complaint should be allowed to proceed. He filed a motion last week asking the court to reconsider its ruling.

“The appellate division said that we did not prove the absence of actual malice and [the ruling contradicts] the long string of cases saying that the burden of … overcoming the privilege is on the plaintiff,” McGimpsey, a partner with McGimpsey & Cafferty, said.

“There's a big difference between our proving actual malice doesn't exist and [the plaintiff] proving actual malice does exist, so we're wondering if [the court] intended to change the law or if that was inadvertent language.”

The language of the opinion also troubles Sandra Baron, executive director of the Libel Defense Resource Center. “This is a confused look at the standards of summary judgment … what the court should have done was respond to the evidence the plaintiff presented,” Baron, said.

“It is not enough to say the plaintiff has some evidence that might support a finding at trial of actual malice,” she continued. “The court must require the plaintiff at summary judgement to prove by clear and convincing evidence that the defendant acted with actual malice,” which she says the appeals court did not do.

“This is just not the way American libel law works,” said Jane Kirtley, professor of media ethics and law at the University of Minnesota School of Journalism and Mass Communication.

“I am truly mystified,” said the former executive director of the Reporters Committee for Freedom of the Press. “I'm not aware of any contemporary jurisprudence in this country that would support this [ruling]. The underpinning of the malice standing, [places the burden] on the plaintiff. Respectfully, I have to say the court got it completely wrong.”

Disagreeing that the court was off base is Barry A. Knopf, Perna's attorney and a partner with Cohn, Lifland, Pearlman Herrmann & Knopf. “The defendant in this case did such a slipshod job that they deserved to be hit,” Knopf said.

“[The paper] did nothing to determine whether any of the facts contained in their articles were accurate,” Knopf said. “I think [the First Amendment] should be given the broadest protections but this is terrible journalism. They accused someone of political corruption and refused to correct their mistakes … when you're told you have the wrong facts you do something about it.”

David A. Logan, professor of law at Wake Forest University in North Carolina, agrees with Kirtley that the opinion is “odd.” “It appears to say that the media has the burden to disprove actual malice [and that's] inconsistent with federal law,” he said.

However, Logan doubts that the ruling will have any far-reaching impact. “The chances of this court really making a dramatic change in doctrines well-established and familiar is pretty unlikely. It's unlikely that there will be a ripple effect of this long term and probably not short term.”

Whatever the outcome of the trial, both Kirtley and Logan say they hope the ruling does not mar what they describe as the New Jersey judiciary's historically good track record in defending press freedom. “The courts in New Jersey have usually been pretty good on press issues and reporters privilege,” Kirtley said.