Gray v. Press Communications, LLC

Citations: 775 A.2d 678; 342 N.J. Super. 1

Court: New Jersey Superior Court; July 2, 2001; New Jersey; State Appellate Court

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Sally Starr Gray, the plaintiff, appealed an order from the Superior Court of New Jersey, Appellate Division, which granted summary judgment in favor of defendants Press Communications, LLC, Jeff Diminski, and Leigh Jacobs, thus dismissing her defamation complaint. The court, led by Judge Steinberg, ultimately reversed the summary judgment. 

In the defendants' motion for summary judgment, they presented a biographical profile of Gray, detailing her extensive career in entertainment that began in the 1940s, including her role as the regional voice for Pepsi Cola and hosting a children's television program in Philadelphia from 1950 to 1972. Gray was actively involved in personal appearances and community service, participating in various charitable organizations and events, including the Philadelphia Gay Pride Parade.

At the time of the incident in question, Jeff Diminski was a co-host on an afternoon radio program on FM 101.5, operated by Press Communications, LLC. The program, described as entertainment-driven and aimed at a younger audience, avoided serious political discussions and focused instead on lifestyle topics relevant to New Jersey. The July 24, 1998 episode of the show invited listeners to share memories of children’s television programs.

The case highlights the background of the parties involved and sets the stage for the legal arguments surrounding the defamation claim.

A transcript of a radio program reveals an exchange where a caller named Sally mentions her favorite shows, leading to a comment by host Diminski referring to Sally Starr as a "lesbian cowgirl." Sally reacts negatively to this characterization, stating, "Oh, you're sick," and ends the call. During his deposition, Diminski explains that he was unfamiliar with Sally Starr until the 1980s and had heard from others that she was a self-identified lesbian. He recounts instances where he learned of her alleged sexual orientation, including a neighbor's comment about her involvement in a Gay Pride parade and conversations among comedians in the late 1980s. However, he admits to not being able to identify those individuals or recalling any interviews where Starr identified herself as a lesbian.

After hearing Diminski's comment, Sally contacted the radio station, seeking to speak with program director Jacobs. Although Jacobs did not hear the comment, he assured her he would address it. Diminski later retracted his statement on air, humorously noting the confusion that ensued from the incident. During a hearing on the defendants' motion for summary judgment, the judge categorized Starr as a public figure, a classification that her attorney did not contest. The judge concluded that for Starr to succeed in her claim, she must provide clear and convincing evidence that Diminski's statement was made with malice, indicating he knew it was likely false.

The judge determined that the evidence provided did not meet the standard of 'clear and convincing evidence' that Diminski acted with malice or reckless disregard for the truth. The plaintiff contends that the motion judge incorrectly granted summary judgment, asserting that the phrase 'lesbian cowgirl' could be interpreted as defamatory and that a reasonable factfinder could conclude that Diminski made the statement either knowing it was false or with serious doubt regarding its truth. In evaluating summary judgment, the judge must consider whether the presented evidence, viewed favorably for the non-moving party, allows for a rational conclusion in their favor. Summary judgment is appropriate if the evidence shows no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. A genuine issue exists only if the evidence suggests that a reasonable jury could find in favor of the non-moving party. A disputed issue is not considered genuine if it has a single, unavoidable resolution. An appellate court applies the same standard as trial courts in assessing whether summary judgment was appropriately granted. 

In defamation cases, the key issue is whether the language in question is reasonably susceptible to a defamatory interpretation. Initially, this determination is a legal question for the court. If a statement has only one meaning that is defamatory, it is deemed defamatory as a matter of law. Conversely, if it has only a non-defamatory meaning, the claim must be dismissed. For statements with multiple meanings, including one that is defamatory, the determination must be made by a factfinder. The research indicates a lack of New Jersey case law specifically addressing whether accusations of homosexuality are defamatory; however, most jurisdictions that have examined the issue conclude that false accusations regarding sexual orientation can be actionable.

False statements about a person's sexual preference can be considered defamatory, as established in several cases. Specifically, accusations of homosexuality are actionable, although they may not be libelous per se without proof of special damages, as seen in Moricoli v. Schwartz and Hayes v. Smith. However, a false accusation of homosexuality is recognized as slanderous per se in Head v. Newton. Despite societal progress regarding sexual preferences, there remains a stigma around homosexuality, making such accusations susceptible to defamation claims.

To prove defamation, a plaintiff must demonstrate that the defendant made a false statement of fact that was communicated to others, causing reputational harm. Furthermore, damages must be established. In cases involving public figures, the First Amendment protects statements unless made with actual malice, defined as knowledge of falsity or reckless disregard for the truth, as outlined in New York Times v. Sullivan. Actual malice requires clear and convincing evidence that the publisher had a high degree of awareness of the statement's probable falsity.

Negligent publication does not meet the actual malice standard; however, reckless publication can occur if the publisher fabricates a story, publishes unbelievable claims, relies on unreliable informants, or avoids the truth. The court determines malice as a matter of law, granting summary judgment only when no reasonable factfinder could find that the plaintiff has established malice. Courts are encouraged to dismiss non-meritorious defamation claims to protect First Amendment values and avoid chilling effects on free speech.

The court determined that the judge erred in granting summary judgment in favor of the defendants regarding the plaintiff's claim of defamation. The plaintiff must provide substantial evidence to overcome a motion for summary judgment, particularly when the clear and convincing standard applies to proving malice. The court emphasized that genuine issues of material fact concerning the defendants' state of mind, especially regarding malice, typically preclude summary judgment. In this case, the statements made by Diminski lacked credible sources and were deemed potentially fabricated, allowing a reasonable factfinder to infer that Diminski acted with reckless disregard for the truth. The judge's ruling failed to address the defendants' argument that the comments could be considered parody or satire, as he focused solely on the issue of malice. The court reiterated the importance of protecting First Amendment rights while acknowledging that plaintiffs can still meet the high burden of proof required in such cases. The ruling is reversed and remanded for further proceedings, without making a determination on whether the plaintiff is a public figure.