Media organizations challenge court ruling on libel

Several of New Jersey’s media organizations are banding together to fight a court decision that would severely limit how they report on court proceedings.

The North Jersey Media Group, publisher of The Record, filed an appeal to New Jersey’s Supreme Court last week to overturn a lower-court decision in November that said newspapers can be held liable for publishing allegations from court documents. The court’s decision was based on a 2006 case filed against the North Jersey Media Group by Thomas John Salzano, who alleged defamation because The Record reported an allegation from a federal bankruptcy court complaint that Salzano had misappropriated funds from a telecommunications company.

Jennifer Borg, general counsel of the North Jersey Media Group.

Initially, Salzano’s complaint had been thrown out. But an appeals court ruled that The Record could not “republish alleged defamatory statements within a bankruptcy court complaint,” nor did the newspaper prove that the allegations were true or non-defamatory.

Led by general counsel Jennifer Borg, the North Jersey Media Group is seeking a stay on the decision until the Supreme Court can rule on the case. The appeals court’s decision not only limits the ability of newspapers to properly report, Borg told this newspaper in a telephone interview on Tuesday, but also places the burden upon them of essentially determining whether the charges are true.

“We either publish the story relying on the complaint or we don’t publish at all. We have no way of determining if it’s true or not,” she said. “All news media organizations have relied on the fact that as long as we accurately report on the complaint in the lawsuit, we don’t have to worry if it’s true.”

Borg referred to the common-law “fair report privilege,” which allows newspapers to report on official public proceedings, even if those reports contain defamatory statements.

In addition to requiring newspapers to determine the reality of the accusations, the appeals court’s ruling demands that nothing be reported until a judicial review has been made. But what constitutes a judicial review remains vague, Borg said.

“In effect, it prevents us from reporting on the initiation of the complaints filed in lawsuits, requiring us to confirm the veracity of the allegations before reporting. It has a monumental chilling effect on the press. We either don’t publish the story or we publish the story knowing we run a huge risk if the allegations are found false.”

Thomas Cafferty, a lawyer representing the New Jersey Press Association, has filed a motion on behalf of NJPA and more than a dozen other media organizations to intervene as a friend of the court on behalf of The Record. If the court allows the motion, the positions of NJPA and other organizations will be taken under consideration by the court.

“Essentially, we are parties who have a unique interest that will be affected by a determination of that case,” he said. “We would like the court to hear our perspective.”

The organizations he’s representing include The New York Times, The Associated Press, Gannett, the Newspaper Association of America, and the American Civil Liberties Union.

“We think the case raises significant issues of both a constitutional and state law nature concerning the privileges afforded to the media to report on judicial proceedings,” he said.

No timetable has been set for the Supreme Court to rule on the amicus curiae – friend of the court – motion, as it first must decide whether it will hear the North Jersey Media Group’s case. Cafferty expected that decision to come within a month.

While Jewish newspapers do not regularly report on criminal proceedings, the ability to do so when necessary is paramount to their mission as newspapers.

Gary Rosenblatt, editor and publisher of The Jewish Week in New York, is well known in Jewish journalistic circles for his reportage on the Rabbi Baruch Lanner case. In a 2000 article, he revealed allegations that Lanner, then director of regions of the National Conference of Synagogue Youth, engaged in physical, sexual, psychological, and emotional abuse of teenage girls and boys throughout his 30-year career.

As it was Rosenblatt’s investigations that led to the criminal charges, he would not have been limited by a decision like the one The Record is challenging. But, he said, the press needs the freedom to work within the court system and make use of public documents.

“The more opportunities the press has to cover important issues, it’s better for society,” he said. “It would be a step backward to restrain the press from reporting on lawsuits.”

Marcia Garfinkle, associate publisher of this newspaper, called the court’s ruling “scary.”

“It’s a threatening decision,” she said. “It will have an effect on all journalists.”

Elana Kahn-Oren, president of the American Jewish Press Association, said the issue is one all journalists are concerned with and she would bring the case up with the AJPA’s executive committee.

Garfinkle was sure that eventually the ruling would be overturned. “There’s no logic to it,” she said.

“We’re very grateful for other media organizations’ support in this most important matter,” Borg said.