UCLA First Amendment Amicus Brief Clinic brief in Petro-Lubricant Testing Laboratories, Inc. v. Adelman (N.J. Super. Ct.)

The UCLA First Amendment Amicus Brief Clinic submitted a brief in an interesting New Jersey trial court case a few weeks ago (Petro-Lubricant Testing Laboratories, Inc. v. Adelman), on behalf of the Reporters Committee for Freedom of the Press. My students Nate Barrett, Charles Linehan, and Michael Smith worked on it, and New Jersey lawyer Daniel Schmutter of Greenbaum, Rowe, Smith & Davis LLP was kind enough to agree to be pro bono local counsel — many thanks to him for that!

Here’s the general factual background, from the court opinion that earlier denied summary judgment:

This case arises out of a dispute over the content of three articles posted on the website, eBossWatch.com which concern John Wintermute and complaints filed against him and PTL (Petro-Lubricant Testing Laboratories) by former PTL employees….

On June 21, 2010, a former seventeen-year PTL employee, Kristen Laforgia … filed a complaint seeking money damages in the Superior Court of New Jersey against Plaintiffs alleging gender discrimination, hostile work environment, retaliation, and assault and battery…. Laforgia’s complaint included claims that Plaintiff Wintermute “has referred to female employees as ‘bitches’ and ‘cunts,”‘ “has beaten or destroyed the property of female employees that he was having or had a personal relationship with,” is a “dangerous and violent alcoholic,” “regularly brought guns into the workplace,” “forced workers to listen to and read white supremacist materials,” “drank alcohol regularly throughout the workday,” assaulted a female employee, threatened to kill a female employee, and subjected his employees to “anti-religion, anti-minority, anti-Jewish, anti-Catholic, anti-gay rants.”

Defendant Adelman founded the website eBossWatch.com. The motto of the website is “Nobody should have to work with a jerk.”

On August 3, 2010, eBossWatch.com posted an article concerning Laforgia’s Complaint entitled, “‘Bizarre’ and Hostile Work Environment Leads to Lawsuit.”

On December 15, 2010, eBossWatch.com included and referenced Wintermute as #39 out of 100 of its list of”America’s Worst Bosses 2010.”

On April 20, 2011, Laforgia and Plaintiffs settled Laforgia’s civil lawsuit, prior to trial.

By letter dated December 22, 2011, counsel for Plaintiffs demanded removal of the August 3, 2010 and December 15, 2010 material located on eBossWatch.com, as well as any other meta tags concerning Plaintiffs.

Following the December 22, 2011 correspondence from Plaintiffs, eBossWatch.com posted an amended version of the August 3, 2010 article, entitled “Hostile Work Environment Lawsuit Filed Against Petro-Lubricant Testing Laboratories.”

On June 19, 2012, Plaintiffs filed this lawsuit seeking damages for defamation per se, defamation, false light publicity, and intentional infliction of emotional distress against Defendant Adelman.

Here is the substance of our brief. Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

SUMMARY OF ARGUMENT

The lawsuit against the defendant should be dismissed, for two reasons.

1. The plaintiffs filed the lawsuit more than a year after the defendant’s article was posted. The one-year statute of limitations had therefore run.

To be sure, the defendant had modified the article after it was originally posted, but that was in response to the plaintiffs’ demands, and involved a minor change that only softened the initial allegations. The change did not involve any broader publication of the original claims, or any additional allegations beyond those posted initially. Therefore, under the single publication rule, any libel lawsuit should have been brought within a year of the original posting.

People who are criticized in online publications will often contact the author and ask that he take down the criticism. The author may understandably stand by the bulk of the criticism, but be willing to soften some of the allegations. Such willingness should not put the author in a worse position than he would have been in had he refused to make any change.

Yet plaintiffs’ approach, under which any such modification would restart the statute of limitations, would indeed put the author in a worse position. If the statute of limitations has already run, then the author who does not give an inch will remain protected — but the author who tries to make some accommodation will find that the author’s courtesy has revived the plaintiff’s lawsuit.

Of course, a well-counseled author would know to demand a waiver of any claim as a condition of making any change. But unwary authors, and especially authors who cannot afford to hire a lawyer, could find themselves suffering because of their own willingness to compromise. This effect would contradict the policy of the single publication rule, which seeks to protect speakers against constant suits for damages and the constant restarting of the statute of limitations.

2. Even if the plaintiffs’ action had been potentially revived by the defendant’s alteration of the article, the plaintiffs’ action should still be rejected because the defendant was simply reporting on a complaint that had been filed in court. Such reports are protected by New Jersey’s fair report privilege.

Nor does it matter that the updated page did not mention that, by the time of the update, the case had been settled. The page remained accurate, because it accurately reported that a complaint had been filed. And the settlement did nothing to disprove the factual allegations in the complaint; settlements do not carry the same exculpatory meaning as, for instance, a defense verdict or a grant of summary judgment.

Indeed, if the settlement had been mentioned, a reader might have been even more disposed to view plaintiff as having been guilty of the allegations mentioned in the complaint. Any mention of the settlement (the terms of which were, in any event, confidential at the time) would not have undermined the “sting” of the allegations in the complaint.

ARGUMENT

I. This Court Should Hold That the Defendant’s 2011 Alterations to His Article Were Not a Republication, Because the Alterations Were Minor Changes That Softened the Allegations at Plaintiff’s Request

A. The Defendant’s 2011 Alterations Were Minimal and Do Not Amount to Republication

Claims of defamation are subject to a one-year statute of limitations. See N.J.S.A. § 2A:14-3 (West); Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108, 121 (App. Div. 2009). Under the “single publication rule,” plaintiffs in defamation cases are restricted to one cause of action that arises when an allegedly defamatory work is first published. Churchill v. State, 378 N.J. Super. 471, 478 (App. Div. 2005); Restatement (Second) of Torts § 577A(4).

New Jersey law has adopted the single publication rule and applies it to publications on the Internet. Churchill, 378 N.J. Super. at 478-79, 483. The single publication rule “prevents the constant tolling of the statute of limitations,” and favors “a short statute of limitation period for defamation.” Id. at 479. The absence of this rule in the Internet context would result in “endless retriggering of the statute of limitations” and “harassment of defendants.” Firth v. State, 775 N.E.2d 463, 465-66 (N.Y. 2002).

And courts have recognized that the single publication rule should continue to apply when a defendant had made changes that did not “communicat[e] the alleged defamatory information to a new audience,” Atkinson v. McLaughlin, 462 F. Supp. 2d 1038, 1055 (D.N.D. 2006), or otherwise exacerbate the allegedly defamatory sting of the article. Yeager v. Bowlin, 2010 WL 95242, *13 n.10 (E.D. Cal. 2010), aff’d in part, 693 F.3d 1076 (9th Cir. 2012), and 495 F. App’x 780 (9th Cir. 2012). A modification that does not “materially or substantially alter the substance or content of the website” should not restart the statute of limitations. Atkinson, 462 F. Supp. 2d at 1055. A fortiori, a modification that, if it changes the substance at all, does so only to soften the allegations — and thus (if anything) diminish the sting of the article — should likewise not be seen as restarting the statute. Treating modifications that diminish the sting of the article as a republication would thus “defeat the beneficial purposes” of the single publication rule. Churchill, 378 N.J. Super. at 484.

Courts applying the republication rule for Internet publications have often focused on whether a change to a Web page is intended to bring the defamatory material in front of a new audience. See, e.g.,Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002) (“the justification for the republication exception has no application at all to the addition of unrelated material on a Web site, for it is not reasonably inferable that the addition was made either with the intent or the result of communicating the earlier and separate defamatory information to a new audience”); Atkinson, 462 F. Supp. 2d at 1055. And when a Web page is changed in a way that reaches the same audience, but with new de­fama­tory allegations or allegations that are harsher than the original, the same logic would apply.

But in this case, the revisions were neither meant to reach a new audience nor to reach the same audience with new charges. Rather, the revisions softened the original allegations, so that anyone visiting the page would see material that, if anything, painted a less unflattering picture of the plaintiff.

Thus, for instance, in Atkinson, the defendants in a libel case modified their Web site to update the names and addresses of nonprofit corporation’s board of directors so that people could urge the board members to investigate the defendants’ concerns about the plaintiff (the founder of the corporation). Atkinson, 462 F. Supp. 2d at 1054-55. Though the modification was “more than a technical change,” the court noted that “the update to the listing of the Board of Directors for the God’s Child Project did not reasonably result in communicating the alleged defamatory information to a new audience,” id., and therefore did not constitute a republication. Likewise, here, the alteration did not “reasonably communicat[e] the alleged defamatory information to a new audience,” or reasonably communicate any new defamatory information to the same audience. It simply maintained the initially published allegations, while softening them in some measure.

In contrast, consider In re Davis, 347 B.R. 607 (W.D. Ky. 2006). In Davis, the defendants updated their Web site by listing additional nefarious activities in which the plaintiff had allegedly engaged. Id. at 610. The court held that these were “substantive” changes to the content of the Web site that gave rise to a “republication” of the original defamatory material. Id. at 612. And this is correct. The additional charges were in fact published for the first time in the update. In this case, by contrast, all the allegedly defamatory charges were published in 2010, and the statute of limitations had run since then.

B. Holding That the Defendant’s 2011 Alterations Constituted a Republication Would Discourage Parties from Trying to Mitigate Any Reputational Damage That Might Have Been Caused by an Article

While the dispute between these plaintiffs and these defendants has resulted in litigation, many parties with similar concerns about defamation or about their online images may seek to resolve these concerns without resorting to litigation. The plaintiff seemed to initially take this approach in his Dec. 22, 2011 request that the defendant remove material concerning the plaintiff from its Web site. The defendant did not remove the article from the Web site, but instead changed some of the text to tone down the recounting of the complaint’s allegations. It was after this that the plaintiff sued, claiming that the defendant’s efforts to tone down the language of the article were a republication of the article, and thus restarted the statute of limitations. See Plaintiff’s Opposition to Defendant Asher Adelman’s Motion for Summary Judgment in Lieu of an Answer, at 8.

Yet the legal system ought to (and does) try to encourage parties to privately remedy potentially harmful conduct, rather than discouraging them from doing so. New Jersey’s prohibition on using evidence of subsequent remedial measures to prove liability is a helpful illustration of this policy. New Jersey Rule of Evidence 407 prohibits the admission of “remedial measures taken after an event . . . to prove that the event was caused by negligence or culpable conduct.” N.J. R. Evid. 407. This rule reflects the “strong public policy” in favor of encouraging defendants to take remedial measures, and against rules that deter such remedial measures. Szalontai v. Yazbo’s Sports Café, 183 N.J. 386, 402 (2005).

“[E]vidence of remedial measures is excluded . . . because admission of said testimony might discourage corrective action and induce perpe­tu­ation of the damage and condition that gave rise to the lawsuit.” Harris v. Peridot Chemical, Inc., 313 N.J. Super. 257, 292 (App. Div. 1998) (alteration in original) (internal quote omitted). Likewise, the single publication rule should be interpreted in a way that does not “discourage corrective action” or “induce perpetuation of the [alleged] damage and condition that gave rise to the lawsuit.” Id. at 292.

Of course, legally savvy authors would know that they can avoid restarting of the statute of limitations by demanding that potential plaintiffs sign a release as a condition of any change being made. Indeed, if the statute of limitations had already run, a well-counseled author would be in an excellent position to make this demand, since the potential plaintiff would know that he has no case and would thus have nothing to gain from refusing the demand.

But many online authors do not know their legal rights, and cannot afford to hire lawyers in such situations. They might therefore inadvertently surrender the protection offered by the statute of limitations, simply by trying to soften the allegations in their original post. That is not consistent with the purpose of the single publication rule, especially on the Internet — a cheap and democratic medium that lets average citizens, who lack a legal staff, speak to the public.

The law should encourage potential defendants to alter online articles or posts in response to a party’s private request, if the defendants believe such an alteration is fair and proper. Such alterations may decrease the harm to the subjects of the articles, while still allowing the authors to continue communicating important information that may ultimately prove not to be actionable. And resolving this issue privately also helps diminish the costs that litigation imposes both on the parties and on the judicial system. The defendant’s softening of his article, done in response to the plaintiffs’ objections, should not lead to the defendant’s losing the protection of the single publication rule.

II. Defendant’s 2011 Article Was a Fair, Full, and Accurate Account of a Judicial Proceeding, and Is Thus Protected by the Fair Report Privilege

Even if this Court finds that the defendant’s 2011 revised article was a new publication, that article is protected from the plaintiffs’ lawsuit by the fair report privilege. This privilege immunizes “full, fair, and accurate” accounts of judicial proceedings, including complaints filed in civil cases. Salzano v. N. Jersey Media Grp., Inc., 201 N.J. 500, 516, 519, 522 (2010); Costello v. Ocean County Observer, 136 N.J. 594, 607 (1994). A report is “full, fair, and accurate” if it has, to an ordinary citizen, essentially the same “sting” as that of the complaint. Salzano, 201 N.J.at 525, 537. The report need only be substantially correct; excessive “mincing of words would effectively eviscerate the privilege.” Id. at 526.

The defendant’s 2011 article is protected by the fair report privilege. The defendant was reporting on a complaint filed in a judicial proceeding against the plaintiffs. The defendant’s article accurately portrayed who was sued and what was alleged. Cf. Fortenbaugh v. N.J. Press, Inc., 317 N.J. Super. 439, 450-51 (App. Div. 1999) (publications are not protected by the fair report privilege when a publication contains a misleading chronology of events and does not specify the judicial context in which certain complained facts are alleged).

To be sure, the article, as updated in 2011, did not mention the settlement, even though the settlement had taken place by the time of the update. But including a reference to the settlement would not change the “sting” of the article. See Salzano, 201 N.J. at 524-25 (holding that a report of a complaint is “stripp[ed] . . . of [the] protections” offered by the fair report privilege only when the “sting” of the article is materially harsher than what is actually alleged in a complaint).

In this age of frequent litigation, news stories of frivolous lawsuits are commonplace, and people generally take allegations in a complaint with a large grain of salt. A reasonable reader who had not heard of the settlement might be open to the possibility that the complaint may be true, or may be false. Hearing of the settlement would not lead the reasonable reader to say, “Oh, the claims must have been unfounded.” If anything, knowing that the case had settled for a confidential amount, Deposition of John Wintermute, Jan. 16, 2014, at 191, might lead the reader to put more credence in the original allegations. Indeed, even plaintiff John Wintermute acknowledged that, if the article had accurately reported the amount of the settlement, a “common person reading that would infer some sort of implicit wrong-doing in the matter”:

Q. So if the article revealed, for example, let’s say it wasn’t confidential and the article revealed instead of saying what it did which is nothing about settlement, but if it instead had said oh, PTL paid the amounts that PTL paid and listed those amounts. Do you think your reputation would have been damaged any less or worse? …

THE WITNESS: I think it would probably be worse th[a]n simply to state the matter was settled without prejudice, to say that we were forced to fork over large sums of money is — I believe common person reading that would infer some sort of implicit wrong-doing in the matter and we did nothing wrong.

Id. at 187-88.

Unlike a dismissal by the court or a finding that exonerates a party, a settlement is thus, at best, vague as to the defendant’s liability. “[G]enerally, a dismissal resulting from a settlement does not constitute a favorable determination because the dismissal reflects ambiguously on the merits of the action as it results from the joint action of the parties, thus leaving open the question of defendant’s guilt or innocence.” McCubbrey v. Veninga, 39 F.3d 1054, 1055 (9th Cir. 1994) (quoting Pender v. Radin, 29 Cal. Rptr. 2d 36, 40 (1994)). Thus, even though it did not mention the settlement, the “‘sting’ of the report[] was essentially the same as that of the complaint.” Salzano, 201 N.J. at 525.

Libel-by-omission cases offer a helpful analogy, since the plaintiffs are claiming that the defendant lost the fair report privilege because he omitted to mention the settlement. In libel-by-omission cases, plaintiffs claim that a report defames them because of relevant facts that it excludes. But courts recognize that any report will necessarily omit some facts. Courts therefore ask whether the omission affects the “sting” of the article, the very test used in fair report cases under Salzano.

For example, in Chappin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993), the Fourth Circuit held that a news article stating that plaintiff had a negative bank account balance was not actionable, though the article omitted the fact that the plaintiff had enough money to pay off the overall balance. Id. at 1094-95. The court noted that “where the alleged defamatory ‘sting’ arises from substantially true facts, the plaintiff may not rely on minor or irrelevant inaccuracies to state a claim for libel.” Id. at 1092.

Likewise, in Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir. 1986) (en banc), the Eighth Circuit noted that “[e]very news story . . . reflects choices of what to leave out,” and so long as “the ‘sting’ of the implication . . . is still present when [all the details] are laid out,” the omission does not make the statement actionable. Id. at 1306. In this case, “the ‘sting’ of the implication” would still have been equally present if the settlement had been mentioned.

Reilly v. Gillen, 176 N.J. Super. 321 (App. Div. 1980), and Costello v. Ocean County Observer, 136 N.J. 594, 604 (1994), are consistent with this approach. The “sting” of the article in Costello article was vastly different from the truth. The article failed to report that no complaint was ever filed based on the incident discussed in the article. The article failed to report that neither of the two police officers implicated in the article were parties to the action discussed in the article.

The article failed to report that the plaintiff was legally immune from any claim that could have been asserted against him. Id. at 609. And the actual legal action taken in the case was directed at an entirely different party, even though the article made it appear that the plaintiff was the focus of the court proceeding. Id. at 609-10. This is a far cry from the omission of the settlement in this case. The defendant’s report in this case accurately summarizes the complaint, and, as noted above, mentioning the settlement would not have placed the plaintiff in any better light.

In Reilly, the defendant distributed a copy of a 23-year-old article that discussed the details of a lawsuit that had been filed against the defendant 23 years before. 176 N.J. Super. at 323-24. The court held that the publication was not “full, fair, and accurate” because it did not report on the subsequent vindication of the plaintiff, as the complaint was voluntarily dismissed, the plaintiff was exonerated, and the plaintiff eventually received an apology from his employer and was invited back to work. Id. at 324. Here, on the other hand, the settlement is by no means an exoneration of the plaintiffs or an apology from the employee whose lawsuit was settled.

CONCLUSION

Because the 2011 version of the article was not a republication, the plaintiffs’ claim is time-barred and must be dismissed. And in any event, even if this Court were to conclude that the plaintiffs’ claim is not time-barred, the defendant is protected from the plaintiffs’ suit by the fair report privilege.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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