A Defamation Law Anniversary

On this date in 1982, the Supreme Court decided Kotlikoff v. Community News, 89 N.J. 62 (1982). Justice Clifford’s opinion for a unanimous Court stated that the case “addresses an aspect of the constitutional protection accorded expression of opinion about a public figure.” The basis for the case was a letter by Robert Leather to the editor of the Community News, a small, weekly newspaper in the Pennsauken area. Here is how Justice Clifford summarized that letter, which criticized plaintiff, Louis J. Kotlikoff, then the Mayor of Pennsauken:

“In the letter, which was published under the heading ‘A Conspiracy?’, Leather suggested that Mayor Kotlikoff and Tax Collector Harold Roesler, who had repeatedly refused to reveal the names of property owners delinquent in their payment of local property taxes, might be ‘engaged in a huge coverup.’ The letter expressed concern that the decline in property tax collections would cause an increase in the tax rate, and criticized Kotlikoff and Roesler for withholding from the public and the Township Committee the names of delinquent taxpayers. Leather’s letter concluded by stating that the circumstances surrounding Roesler’s refusal to make public records available ‘add[ed] to the belief that there is a conspiracy * * *.'”

Kotlikoff sued for defamation. Defendants won summary judgment on the ground that the letter to the editor was not reasonably susceptible of a defamatory meaning since the letter expressed only opinions based on disclosed facts. That court relied on the doctrine of “fair comment.” After the Appellate Division reversed, the Supreme Court granted review, reversed the Appellate Division, and restored the summary judgment for defendants.

Justice Clifford observed that “the critical issue in this case — whether the letter in question amounted to a statement of fact or an expression of opinion — is a question of law for the court.” Thus, the Court “emphasize[d] that the summary judgment procedure is particularly well suited to this sensitive area of First Amendment Law.”

Justice Clifford said that the common law doctrine of fair comment had been overtaken by Gertz v. Welch, 418 U.S. 323 (1974). The doctrine was “replaced by a broader protection. Expressions of ‘pure’ opinion on matters of public concern may no longer be the basis of an action for defamation.”

After discussing several precedents, including Greenbelt Cooperative Publ. Ass’n, Inc. v. Bresler, 398 U.S. 6 (1970), the Court held that the statements in the letter to the editor were opinions only:

“In this case plaintiff objects to language accusing him of involvement in a ‘huge coverup’ and a ‘conspiracy’ in connection with his refusal to reveal the names of delinquent taxpayers. Viewed in this context these statements are protected expressions of opinion. The terms ‘conspiracy’ and ‘coverup’ were employed here in a ‘loose, figurative sense’ and as ‘rhetorical hyperbole, much the same as was the word ‘blackmail’ in Greenbelt. When examined in their full context, the offending words appear to have been used not as specific accusations of criminal activity, but rather merely as pejorative rhetoric, criticizing plaintiff in an identified, isolated instance of his performance in public office. The newspaper’s caption over the letter simply asked: ‘A Conspiracy?’ In the opening sentence the letter speculated: ‘Are Mayor Louis J. Kotlikoff and Tax Collector Harold Roesler engaged in a huge conspiracy?’ Taken as a whole the letter could not reasonably be interpreted as charging the plaintiff with committing a criminal offense” [citations omitted].

Given that ruling, there was no need to address the question of actual malice. Defendants won the day based on the fact/opinion distinction.

Kotlikoff has been cited over 100 times by courts in New Jersey and elsewhere, according to Lexis. Those citations include some by our Supreme Court as recently as 2012. The case thus retains vitality, 39 years after it was decided.