WHIPPLE, Senior District Judge.
This matter is before the Court on the motion to dismiss for failure to state a claim filed by defendant Worth Publishers, Inc. (hereinafter "Worth"). F.R.Civ.P. 12(b)(6). Alternatively, Worth has filed a motion for summary judgment on the ground that the action is untimely under the appropriate statute of limitations for libel and right of privacy actions. F.R. Civ.P. 56.
Plaintiff is a New York/New Jersey Port Authority police officer. He complains of a defamatory picture and caption published by Worth in a college-level sociology textbook entitled Sociology. This allegedly defamatory matter is found in chapter 8, "Deviance," in a subchapter headed, "Selecting the Criminals." The picture depicts a white male policeman in a public place who appears to be prodding a black man with his nightstick in order to prevent the man from falling asleep. The caption beneath the picture reads:
Plaintiff frames two causes of action against Worth based on this publication.
The parties submitted moving papers accompanied by affidavits, exhibits, and briefs, and also engaged in oral argument before the Court. For the reasons set forth herein, defendant's motion to dismiss is granted.
At the outset, this Court notes that it agrees with the parties that the law of New Jersey is applicable in this diversity case. Under New Jersey law, the torts of defamation and false light invasion of privacy are separate and distinct. See, e. g., Devlin v. Greiner, 147 N.J.Super. 446, 456, 463-64, 371 A.2d 380 (Law Div.1977). Therefore the Court will examine these claims separately.
Defendant's Motion To Dismiss — Libel Claim
Defendant, in support of its motion to dismiss with respect to plaintiff's libel claim, contends that the challenged portions of the textbook do not contain defamatory statements of or concerning plaintiff. At best, the statements in question constitute innuendo, and therefore can not predicate a libel action brought by a plaintiff who is a public official, such as Mr. Cibenko. Further, the innuendo, if drawn, is merely opinion, and thus is protected by the First Amendment and is not actionable.
Whether words can reasonably be construed as defamatory is a question of law for the Court in the first instance. Restatement (Second) of Torts, § 614, Comment b (1977); Pierce v. Capital Cities Communications, 576 F.2d 495, 502 (3d Cir. 1978), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1980). In making this determination, the Court must examine the publication as a whole. See, e. g., Washington Post Co. v. Chaloner, 250 U.S. 290, 293, 39 S.Ct. 448, 63 L.Ed. 987 (1919); Rinsley v. Brandt, 6 Med.L.Rptr. 1222, 1225 (D.C.Kan.1980), and cases cited therein. As articulated by the Third Circuit in Pierce v. Capital Cities Communications, Inc., supra at 502:
In light of these guidelines, the Court has carefully scrutinized the complained of material and the context in
Even if innuendo implying that plaintiff is racially prejudiced were drawn, it would be insufficient to constitute actionable libel. As a transit police officer, Cibenko is a public official; in fact, he acknowledged as much in his complaint. La Rocca v. New York News, Inc., 156 N.J.Super. 59, 383 A.2d 451 (App.Div.1978). Consequently, in order to prevail against Worth, Cibenko must meet the rigorous standards enunciated in New York Times v. Sullivan, 376 U.S. 254, 279-83, 84 S.Ct. 710, 725-27, 11 L.Ed.2d 686 (1964), and prove that Worth acted with "actual malice", i. e., reckless disregard of truth or calculated falsity. Actual malice can only arise from a false statement of fact, and because this prerequisite is lacking here, no defamation can be shown. See Baird v. Roussin, 6 Med.L.Rptr. 1555 (D.Mass.1980); Loeb v. New Times, 497 F.Supp. 85 (S.D.N.Y.1980).
In any event, the innuendo, if drawn, is simply the author's commentary on undisputed facts. As such, it is editorial opinion, safeguarded by the First Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3006, 41 L.Ed.2d 789 (1974). This protection is embodied in Sec. 566 of the Restatement (Second) of Torts (1977):
It is for the court to decide if an allegedly defamatory statement is opinion and whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion about the plaintiff or his conduct. Restatement (Second) of Torts, § 614; § 566, Comment c (1977). The caption and picture here clearly fall within the category of protected opinion as defined in § 566 of the Restatement. The first sentence of the caption is the sociologist's conjecture regarding an important social issue, and sets the sociological context against which the following two sentences must be read. The second sentence merely describes what is occurring in the picture and establishes the factual
Accordingly, plaintiff's cause of action in libel must be dismissed.
Defendant's Motion To Dismiss — Invasion of Privacy Claims
In addition to his defamation claim, plaintiff claims that Worth violated both the New York statutory right of privacy, as codified in Sections 50 and 51 of the New York Civil Rights Law, as well as the right of privacy recognized by the common law of New Jersey.
Plaintiff's claim under the New York statute is untenable because under New Jersey's choice of law principles, New Jersey law governs this action. Plaintiff is domiciled in New Jersey, and publication occurred in this state.
New Jersey recognizes a claim for false light invasion of privacy consistent with Restatement (Second) of Torts, § 652E (1977). Devlin v. Greiner, 147 N.J.Super. 466, 371 A.2d 380 (Law Div.1977). Section 652E, entitled "Publicity Placing a Person in False Light," provides:
For liability to attach under Section 652E, it is essential that the matter publicized be untrue, although it is not necessary for the matter to be defamatory. § 652E, Comment b. An action for defamation and a claim for false light invasion of privacy, however, are closely allied, and the same considerations apply to each. Fogel v. Forbes, supra, at 500 F.Supp. 1081 at 1088; Rinsley v. Brandt, 6 Med.L.Rptr. 1222 at 1224 (D.Kan.1980); Hill, Defamation and Privacy under the First Amendment, 76 Columbia Law Review 1205, 1207 (1976). Thus, it is for the Court to determine whether the communication in question is capable of bearing a particular meaning which is highly offensive to a reasonable person. Fogel v. Forbes, supra at 1088; Rinsley v. Brandt, supra at 1225.
Plaintiff ascribes the same meaning to the publication in connection with his false light claim as he does in connection with his defamation claim. For the reasons set
Defendant's Motion For Summary Judgment
In view of this Court's disposition of this case on defendant's motion to dismiss, defendant's motion for summary judgment is moot.
To summarize, defendant Worth's motion to dismiss the complaint is granted. Counsel for defendant shall prepare an appropriate order within five (5) days of this Opinion.
To create liability for defamation there must be:
(a) a false and defamatory statement concerning another ...
§ 564 provides:
Applicability of Defamatory Communication to Plaintiff
A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer.