CHARLES C. WARD AND MARY B. WARD V. JOHANAN ZELIKOVSKY
Case Date: 06/20/1994
Docket No: SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 5, 1994 -- Decided June 20, 1994
GARIBALDI, J., writing for the Court.
Johanan Zelikovsky and Mary and Charles Ward owned condominiums in the Ocean Club, a
condominium association. At a July 30, 1989 board meeting of the condominium association, the Wards
were addressing the board on a topic related to the business of the condominium when Zelikovsky jumped
up and blurted out that the residents should not listen to the Wards because they "hate" or "don't like" Jews
and called Mrs. Ward a bitch. Zelikovsky's comments were not related to the subject on which Wards had
been speaking.
The Wards filed suit against Zelikovsky for slandering them at the condominium association meeting
and sought special, compensatory and punitive damages. At trial, both Mr. and Mrs. Ward testified that
Zelikovsky's outburst caused them to be greatly embarrassed and that they felt a "chill" and "coolness" of
many relationships that they had at the Ocean Club. Mrs. Ward claimed that after the incident she was
hesitant to participate in activities at the condominium. Zelikovsky did not deny making the statements but
claimed that he was speaking to a friend seated beside him. He testified that another Ocean Club resident
had told them that she had heard Mr. Ward make an anti-Semitic remark.
The trial court determined that the Wards were required to show special damages because the
offensive remarks were not within the four recognized categories of slander per se. The jury instruction
sheet noted that special damages were a prerequisite to recovery and required deliberations to stop as to
either Mr. or Mrs. Ward if the jury found no special damages for either party.
The jury reached its verdict, finding that Zelikovsky had slandered Mrs. Ward but that she had
sustained no special damages. Ignoring the court's instruction that deliberations should then stop regarding
Mrs. Ward, the jury also determined that she had sustained general damages, but awarded no compensatory
damages. The jury awarded Mrs. Ward punitive damages of $25,000. The jury determined that Zelikovsky
had also slandered Mr. Ward and that he had sustained special and general damages, but that the amount of
such damages was zero. The jury also awarded Mr. Ward $25,000 in punitive damages. The trial court
reminded the jury that only if special damages were found could other damages be awarded and sent the jury
back to reconsider its verdict. The jury's second verdict found that Mr. and Mrs. Ward had each sustained
special damages of $1, general damages of $1, and again awarded punitive damages of $25,000 to both Mr.
and Mrs. Ward. Mr. Zelikovsky moved for a new trial on the slander claim, which the court denied.
On appeal, a majority of the Appellate Division affirmed the trial court's judgment with one judge
dissenting. The majority expanded the traditional categories of slander per se to include imputations of
racial or ethnic bigotry, thus determining that proof of special damages was not necessary. The court also
upheld the punitive damage awards. The dissenting member of the Appellate Division rejected the majority's
view that Zelikovsky's characterization of the Wards as anti-Semitic was defamatory as a matter of law and
that the statement qualified as slander per se. Moreover, the dissent concluded that even if the statement
was defamatory, the Wards had failed to prove special damages.
Zelikovsky appealed to the Supreme Court as of right based on the dissent below. The Court also
granted certification to review the punitive-damage awards.
HELD: The content of Johanan Zelikovsky's hateful statement to the Wards, the context in which he said
it, its lack of verifiability, and the lack of any special damages established that Zelikovsky's
comment, although offensive, was not actionable under the law of slander.
1. The threshold inquiry in a slander lawsuit is whether the words used are reasonably susceptible of a
defamatory meaning. A defamatory statement is one that tends to harm the reputation of another. Whether
the statement is susceptible of a defamatory meaning is a question of law for the court. To make that
determination, a court must consider content, verifiability, and the context of the challenged statement.
Name-calling does not have a defamatory content such that harm to reputation can be shown. While factual
statements are capable of objective proof of truth or falsity, opinion statements are not because such
statements reflect a person's state of mind. If a defamatory opinion is made, the harm will be actionable
only if a reasonable factfinder would conclude that the statements imply reasonably specific assertions of fact
capable of objective proof of truth or falsity. Thus, only if Zelikovsky's statement suggests a specific factual
assertion that could proven to be true or false could the statement qualify as actionable defamation.
Moreover, the listener's reasonable interpretation, which will be based in part on the context in which a
statement appears, is the proper measure for whether the statement is actionable. If the statement occurs
during an argument or is an outburst unrelated to the general topic of discussion, a reasonable listener is less
likely to give the challenged statement its literal meaning. (pp. 8-14)
2. Most courts have concluded that allegations of racism, ethnic hatred or bigotry are not defamatory.
The most important reason for that decision is the chilling effect that such a holding would have on a
person's freedom of expression. (pp. 14-20)
3. The term "bitch" is non-defamatory because it has no ascertainable content, is not verifiable and the
context does not provide the term with a fact intensive meaning. The trial court also should have rejected
the claim for slander based on the statement that the Wards "hate" or "don't like" Jews; such a statement
could be slanderous only if reasonable listeners would interpret the statement to impute supporting facts.
Zelikovsky made no factual statements and did not appear to rely on factual statements known to his
listeners that would make his claim of anti-Semitism actionable. That statement, like the "bitch" statement,
was an unsolicited emotional outburst in the non-actionable category of name-calling. (pp. 20-24)
4. The Court will not expand the four slander per se categories to include allegations of bigotry and
cautions against further expansion of those highly-criticized per se categories. Zelikovsky's anti-Semitic
statement is not slander per se. Thus, if his statement been found to have been defamatory, the Wards
would have had to prove special damages by demonstrating actual concrete proof of harm to reputation.
The proofs were inadequate because the loss claimed by the Wards did not constitute harm of material or
pecuniary nature. Moreover, because special damages are a prerequisite to recovery in a slander action, the
punitive damage awards were also improper. (pp. 24-28)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for entry of an order dismissing the Ward's claims for failing to state a cause of action on which
relief may be granted.
JUSTICE STEIN, concurs in the Court's judgment, but only because he agrees with the holding that
allegations of bigotry do not constitute slander per se and with the determination that the evidence was
insufficient to satisfy the requirement of proof of special damages. However, Justice Stein does not agree
with the Court's conclusion that the Wards' proofs did not establish a cause of action for defamation;
because Zelikovsky's statements were capable of bearing a defamatory meaning, the Court errs in concluding
as a matter of law that the issue should not have been submitted to the jury.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK and O'HERN
join in JUSTICE GARIBALDI's opinion. JUSTICE STEIN filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
CHARLES C. WARD and MARY B. WARD,
Plaintiffs-Respondents,
v.
JOHANAN ZELIKOVSKY,
Defendant-Appellant.
___________________________________
Argued January 5, l994 -- Decided June 20, 1994
On appeal from and on certification to the
Superior Court, Appellate Division, whose opinion
is reported at
263 N.J. Super. 497 (l993).
Gerard W. Quinn argued the cause for
appellant (Cooper, Perskie, April, Niedelman,
Wagenheim & Levenson, attorneys; Mr. Quinn
and Russell L. Lichtenstein, on the briefs).
Arthur L. Shanker argued the cause for
respondents (Weiner & Shanker, attorneys).
The opinion of the Court was delivered by
GARIBALDI, J. Defendant, Johanan Zelikovsky, and plaintiffs, Mary and Charles Ward, own condominiums in the Ocean Club condominium
association, a complex of 725 units. They, together with
approximately one hundred other condominium residents, attended a
July 30, l989, Board meeting of the condominium association.
During the meeting, Mr. Ward addressed the Board on a topic
relating to the business of the condominium. While Mr. Ward was
speaking, Mrs. Ward stood to add her comments. Mrs. Ward
testified that at that moment Zelikovsky, who was seated a few
rows in front of her, "jumped up and said, `Don't listen to these
people. They don't like Jews. She's a bitch. I remember her.
She's a bitch.'" Mr. Ward described Zelikovsky's behavior as
follows,
Ward and some of the guests were waiting for Mr. Ward to bring
his car to the front of the condominium, one of the guests was
handing out sheets with his recommended picks for that evening at
the racetrack. Zelikovsky testified that he mistook the sheets
for advertisements encouraging time-sharing at the condominium, a
practice to which he was vehemently opposed. He demanded a copy
but the guest stated that the sheets were only for his friends.
Mrs. Ward walked over to the two men and then Zelikovsky began
yelling at Mrs. Ward and poked or pushed her during the argument.
The jury found in favor of Mrs. Ward on her assault and battery
claim against Zelikovsky but found no damages. The assault and
battery claim is no longer at issue; this appeal solely addresses
Zelikovsky's alleged slander.
herself, when others mentioned it, she would say, "I'm not.
Really I'm not." or "Haven't I always been nice to you?"
She stated that the difference after the comment was that she
felt a "coolness" that had not existed prior to the statement.
She stated that "we weren't invited to things that we had been
invited to before; and several people did mention it to me."
objection that the returns should not be admissible because debts
and other liabilities were not represented in the returns.
award and sent the jury back for reconsideration of its verdict.
Not surprisingly, the jury's second verdict found that Mr. and
Mrs. Ward had each sustained special damages of $1, general
damages of $1, and again awarded each plaintiff punitive damages
of $25,000.
traditional categories of slander per se to include statements of
religious and ethnic bigotry. The outcome of this case is the same whether we rely on Mr. Ward's or Mrs. Ward's version of the colloquy. We must determine whether the characterization of Mrs. Ward as a "bitch" and the claim that the Wards "don't like" or "hate" Jews are slanderous. In essence, this case concerns a verbal dispute between neighbors and thus is considerably different from libel cases involving media defendants. See Milkovich v. Lorain Journal Co., 497 U.S. l, ll 0 S. Ct. 2695, lll L. Ed.2d l (l990); Gertz v. Robert Welch, Inc., 4l 8 U.S. 323, 94 S. Ct. 2997, 4l L. Ed.2d 789 (l974); Sisler v. Gannett Co., Inc., l 04 N.J. 256 (l986); Kotlikoff v. The Community News, 89 N.J. 62 (l982). A jury can generally assume that a measure of thought preceded the words printed in a newspaper or magazine. In contrast, spoken words often do not evidence that a similar level of deliberation preceded them. See Restatement (Second) of Torts § 568(3) (1977). This distinction is significant because the apparent deliberation of the speaker or writer will influence how a reasonable audience perceives the speech. The law of defamation exists to achieve the proper balance between protecting reputation and protecting free speech. The
threshold inquiry in a slander lawsuit is "whether the language
used is reasonably susceptible of a defamatory meaning."
Kotlikoff, supra, 89 N.J. at 67.
Although perhaps directly injurious to a person, name-calling does not have a defamatory content such that harm to
reputation can be shown. The First Amendment "does not embrace
the trite wallflower politeness of the cliche that `if you can't
say anything good about a person you should say nothing at all.'"
Rodney A. Smolla, Law of Defamation, § 6.09[2], at 6-37 (1986).
Indeed, "name calling, epithets, and abusive language, no matter
how vulgar or offensive, are not actionable." Id. at § 6.12[9],
at 6-54. "No matter how obnoxious, insulting or tasteless such
name-calling, it is regarded as a part of life for which the law
of defamation affords no remedy." Id. at § 4.03, at 4-11.
Courts thus distinguish "between genuinely defamatory communications as opposed to obscenities, vulgarities, insults,
epithets, name-calling, and other verbal abuse." Smolla, supra,
§ 4.03, at 4-l0. Likewise, courts differentiate between
defamatory statements and statements of rhetorical hyperbole.
Id. at § 4.04[l], at 4-l2.
The Supreme Court recently clarified its statement in Gertz
by explaining that it had not "intended to create a wholesale
defamation exemption for anything that might be labeled
'opinion.'" Milkovich, supra, 497 U.S. at l8, ll0 S. Ct. at
2705, lll L. Ed.2d at l7 (l990). Harm from a defamatory opinion
statement is redressable when the statement implies underlying
objective facts that are false. See id. at l8-20, ll0 S.Ct. at
2705-06, lll L. Ed.2d at l7-l8. Only if a reasonable factfinder
would conclude that the statements imply reasonably specific
assertions of fact will the harm be redressable. Ibid.
content" of a statement, the more likely that the statement will
be actionable. Smolla, supra, § 6.06[3], at 6-24. Plaintiff
prevails, however, only if the underlying or implied facts are
untrue. "[L]oose, figurative or hyperbolic language" will be
less likely to imply specific facts, and thus more likely to be
deemed non-actionable as rhetorical hyperbole or a vigorous
epithet. Milkovich, supra, 497 U.S. at 17, 21, 110 S. Ct. at
2705, 2707, 111 L. Ed.
2d at 16, 19.
Restatement (Second) of Torts, supra, § 566 comment c. If the
comment occurred during an argument or is an outburst unrelated
to the general topic of discussion, for example, a reasonable
listener is less likely to accord to the challenged statement its
literal meaning. Indeed, "[t]he ordinary reasonable recipient of
a communication naturally discounts to some degree statements
made in the heat of vitriolic battle, because the recipient
understands and anticipates the human tendency to exaggerate
positions during the passions and prejudices of the moment."
Smolla, supra, § 6.08[4][b][ii], at 6-35.
The circumstances under which verbal abuse is uttered
affect the determination of how it is reasonably to be
understood. Words uttered face to face during an
altercation may well be understood merely as abuse or
insult, while words written after time for thought or
published in a newspaper may be taken to express the
defamatory charge and to be intended to be taken
seriously.
Most courts that have considered whether allegations of racism, ethnic hatred or bigotry are defamatory have concluded for a variety of reasons that they are not. The most important reason is the chilling effect such a holding would cast over a person's freedom of expression. In Stevens v. Tollman, 855 F.2d 394 (1988), cert. denied, 489 U.S. 1065, 109 S. Ct. 1339, 103 L. Ed.2d 809 (1989), the Seventh Circuit held that an accusation of
bigotry is not actionable unless the statement suggests the
existence of defamatory facts. An elementary-school principal
sued the president of the local parent teacher association for
calling the principal a "racist." Judge Easterbrook, writing for
a unanimous panel, reasoned that
Thus, the Seventh Circuit held that under Illinois law bald accusations of bigotry, unsupported by specific factual allegations, constitute mere personal invective, which is not actionable. Ibid; see also Buckley v. Littell, 539 F.2d 882 (2d Cir. l976)(holding that the terms "fascist," "fellow traveler," and "radical right" directed against William F. Buckley, Jr.,
although strong and hate-filled, constituted expressions on
matters of opinion, such as what constitutes a "fascist," and
therefore did not necessarily imply defamatory facts), cert.
denied,
429 U.S. 1062,
97 S. Ct. 785-86,
50 L. Ed.2d 777 (1977);
Rutherford v. Dougherty, 9l F.2d 707 (3d Cir. l937) (holding that
clergyman's accusation in letter to department store that
operated radio station that radio broadcaster fomented religious
hatred and bigotry was not libelous); Kimura v. Superior Court
(Vandenberg), 28l Cal. Rptr. 69l, 698 (Ct. App. l99l), cert.
denied sub nom. VanDenberg v. Regents of Univ. of Cal., ___ U.S.
___ , ll
2 S. Ct. 937, ll
7 L. Ed 2d l08 (l992) (concluding that
publicly-circulated letter describing higher level college
administrator as racist and bigot was not defamatory because use
of epithet "racist" does not "have the tone of a reasoned
accusation, but rather is more like the emotional rhetoric
characteristic of debate in this area."); Sall v. Barber, 782
P.2d l2l6, 1218-19 (Colo. Ct. App. l989) (holding term "bigot,"
in context that plaintiff "was not fit to shine [another
person's] shoes," and should be exiled with "other coyotes and
skunks," would be perceived as "rhetorical hyperbole" and was not
defamatory); Rambo v. Cohen,
587 N.E 2d l40, 147 (Ind. Ct. App.
l992) (holding that statements that plaintiff was "anti-Semit[e]"
and a "horse's butt" were not defamatory per se, because
"obnoxious remarks, even remarks much more obnoxious than those
Cohn is alleged to have made here, are not defamatory per se, and
will not lead to liability without proof of special damages").
In Raible v. Newsweek, Inc., 34l F. Supp. 804, 806-07 (W.D.
Pa. l972), the magazine placed plaintiff's picture next to an
article that accuses the "white majority" of being "racially
prejudiced," "angry, uncultured, crude," and "violence prone."
Accepting that the article could be found to refer to the
plaintiff, the court nevertheless concluded that the statements
were not capable of a defamatory meaning, holding that "to call a
person a bigot or other appropriate name descriptive of his
political, racial, religious, economic or sociological
philosophies gives no rise to an action for libel." Id. at 807.
In Rybas v. Wapner, 457 A.2d 108 (Pa. Super. Ct. 1983), a landlord sued a tenant and the tenant's attorney for libel because the tenant's attorney had written a letter to the landlord's attorney stating that the landlord should make some effort "to demonstrate that he is not as an [sic] anti-Semitic as he appears to be." Id. at 109. The court held that the statement, although personally offensive, was not actionable. We note that to restrict too severely the right to express such opinions, no matter how annoying or disagreeable, would be [sic] dangerous curtailment of a First Amendment right. Individuals should be able to
express their views about the prejudices of others
without the chilling effect of a possible lawsuit in
defamation resulting from their words.
In Cibenko, supra, 5l
0 F. Supp. 76l, a federal court
interpreted New Jersey defamation law in a libel action brought
by a white transit-police officer against the publisher of a
sociology textbook. The textbook contained a photograph of the
officer prodding a black man with a night-stick. The caption
referred to the social status of the offender as the most
significant determinant in applying criminal sanctions and
questioned whether the officer would have acted the same way if
the "offender" had been white. The court granted summary
judgment in favor of the publisher because the allegedly libelous
statement was not of or concerning the plaintiff when considered
as a whole. Id. at 765. The court continued, however, that even
if it considered the statement to be "of or concerning the
plaintiff," no action would stand. The court reasoned as
follows:
Thus, the court determined that under federal constitutional law,
that accusation of racism was non-actionable opinion. Id. at
766. These cases demonstrate that most states do not consider words of bigotry or racism to constitute actionable defamation, thus protecting the freedom to express even unpopular, ugly and hateful, political, religious, and social opinions. But see Sweeney v. Schenectady Union Pub. Co., 122 F.2d 288 (2d Cir. 1941), (reversing dismissal of complaint involving newspaper article that falsely accused congressman of opposing the appointment of a certain person as a federal judge because that person was Jewish and holding that the statement could be actionable libel under a statute that made libelous per se the publication of "words which tend to expose one to public hatred, shame . . . or [ ] induce an evil opinion of one in the minds of right-thinking persons"), aff'd, 316 U.S. 642, 62 S. Ct. 1031, 86 L. Ed. 1727, reh'g denied, 316 U.S. 710, 62 S. Ct. 1266, 86 L. Ed.2d 1776 (1942); City of Brownsville v. Pena, 716 S.W.2d 677 (Tex. Ct. App. 1986) (upholding jury verdict finding libelous supervisor's comment in newspaper interview that plaintiff employee was "a person with racist attitudes against Mexicans legally residing in the United States" who had "threatened to fire them as soon as he takes over"). Pena and Sweeney are distinguishable from our case because the court in those cases deemed the statements libelous per se and the statements in those cases rested on specific facts. Interestingly, the Second Circuit's decision in Sweeney was the only one of eight published opinions that held the article to be defamatory. The other courts all ruled that the alleged statement was not actionable.
Ward, supra, 263 N.J. Super. at 519 n.4 (Skillman, J.,
dissenting). Because this case implicates First Amendment freedoms, we must "`make an independent examination of the whole record,'" to ensure that "`"the judgment does not constitute a forbidden intrusion on the field of free expression."'" Milkovich, supra, 497 U.S. at 17, 110 S. Ct. at 2705, 111 L. Ed. 2d at 17 (quoting Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 1958, 80 L. Ed.2d 502, 515 (1984) (quoting New York Times v. Sullivan, 376 U.S. 254, 284-86, 84 S. Ct. 710, 728, 11 L. Ed.2d 686, 709 (1964))). We begin with Zelikovsky's characterization of Mrs. Ward as a "bitch." Although extremely offensive to Mrs. Ward and perhaps understood by those who heard it to express a negative opinion of her, defendant's description of Mrs. Ward as a "bitch" was "simply personal invective." Ward, supra, 263 N.J. Super. at 5l5 (Skillman, J., dissenting). The term "bitch" is undoubtedly disparaging. But to hold that calling someone a "bitch" is actionable would require us to imbue the term with a meaning it does not have. Such a holding would, in effect, say that some objective facts exist to justify characterizing someone as a bitch. If calling someone a bitch is actionable, defendants must be able to raise the defense of truth. "Bitch" in its common everyday use is vulgar but non-actionable name-calling that is incapable of objective truth or falsity. A reasonable listener hearing the word "bitch" would
interpret the term to indicate merely that the speaker disliked
Mrs. Ward and is otherwise inarticulate. Although Zelikovsky's
manner of expression was very offensive, our slander laws do not
redress offensive ideas. Because the term "bitch" has no
ascertainable content, is not verifiable and the context does not
imbue the term with a fact intensive meaning, the trial court
should have ruled the "bitch" statement non-actionable.
reasonable listeners would interpret the statement to impute
supporting facts. At trial, Zelikovsky claimed that his
allegation of anti-Semitism was supported by the fact that his
neighbor, Sheila Polin, had overheard Mr. Ward make an anti-Semitic statement. But that basis for the claim of anti-Semitism
was not generally known to those who overheard Zelikovsky's
statement, nor did Zelikovsky advise the listeners that this was
the basis for his claim that the Wards "hate Jews." Thus,
Zelikovsky made no factual statements and did not appear to rely
on factual statements known to the audience that would transform
his claim of anti-Semitism into an actionable statement.
[263 N.J. Super. at 520 (quoting Restatement
Defendant's statement was non-actionable and any claim based
thereon should have been dismissed as a matter of law. In addition, even if the statements had been found defamatory rather than merely insulting, plaintiffs would still
have to prove special damages. Although scathing
characterizations can be hurtful, the law of defamation does not
provide redress whenever feelings and sensibilities are offended.
Harper, supra, 2 The Law of Torts § 5.l, at 24. Rather, recovery
for slander exists to redress solely harm to reputation. See
Printing Mart-Morristown v. Sharp Elecs. Corp., ll
6 N.J. 739, 765
(l989) (stating, "Defamation imposes liability for publication of
false statements that injure the reputation of another.").
categories of slander per se. We do not adopt the Appellate
Division's holding that expanded the four slander per se
categories to include allegations of bigotry, and we caution
against further expansion of the highly-criticized per se
categories.
is to focus on the injury not the wrong and the slander per se
categories are a relic from tort law's previous age. Anderson,
supra, 25 Wm. & Mary L. Rev. at 747-48. Because the goal of
defamation law should be to "compensat[e] individuals for harm to
reputation," the trend should be toward elimination not expansion
of the per se categories. Harper, supra, 2 The Law of Torts §
5.14, at 116; Keeton, supra, § 112, at 794; Smolla, supra, §
7.09, at 7-16; Anderson, supra, 25 Wm. & Mary L. Rev. at 749,
751.
material or pecuniary nature". Ward, supra, 263 N.J. Super. at
503, 526. The Wards did not offer sufficient proof that the
"chill" they felt, the feeling of not being wanted at condominium
affairs, and the alleged decline in Mrs. Ward's real-estate
business actually existed and were caused by Zelikovsky's
statement at the condominium board meeting. Significantly, no
witness testified to thinking less of the Wards because of
Zelikovsky's statements. See Anderson, supra, 25 Wm. & Mary L.
Rev. at 770 n.94 (noting that "a defamation plaintiff always must
choose whether to suffer in silence or risk further harm to his
reputation" by being forced to repeat defamation when seeking
witnesses to testify about their perception of plaintiffs after
statement). Indeed, the witness presented by the Wards testified
that the Wards did not drop in their esteem as a result of
Zelikovsky's statements. Moreover, "lowered social standing and
its purely social consequences are not sufficient" to support a
finding of special damages. Restatement (Second) of Torts,
supra, § 575 comment b. Even the jury did not find special
damages on its first review of the case. Ward, supra, 263 N.J.
Super. at 526.
We sympathize with the Wards. Defendant's language was extremely repulsive and hateful and undoubtedly caused the Wards great embarrassment. It was not, however, defamatory, nor did the Wards prove that the statements caused ascertainable damage to their reputation. There is a regrettable rudeness in our society today. Social and public discourse is marked by uncivility and boorishness. Nonetheless, as society has evolved, social attitudes toward judicial review of speech have changed. As a society we have made a determination that the best way to combat bias and prejudice is through the exchange of ideas and speech, not through lawsuits. We continue to seek a balance between freedom of speech and protection of a person's reputation. In recognizing that important balance, we determine that the content of defendant's hateful statement, the context in which he said it, its lack of verifiability, and the lack of any special damages establish that Zelikovsky's conduct, although hateful and despicable, was not actionable under the law of slander. We reverse the judgment of the Appellate Division and remand to the Law Division for entry there of an Order dismissing plaintiffs' claims for failing to state a cause of action on which relief may be granted. No costs.
Chief Justice Wilentz and Justices Clifford, Handler,
Pollock, and O'Hern join in this opinion. Justice Stein has
filed a separate concurring opinion.
CHARLES C. WARD and MARY B. WARD,
Plaintiffs-Respondents,
v.
JOHANAN ZELIKOVSKY,
Defendant-Appellant.
_________________________________
STEIN, J., concurring.
I concur in the Court's judgment, but only because I agree
with the holding that allegations of bigotry do not constitute
slander per se, ante at ___ (slip op. at 24-26), and with the
Court's determination that plaintiffs' evidence was insufficient
to satisfy the requirement of proof of special damages. Ante at
___ (slip op. at 26-27). I cannot agree, however, with the
Court's conclusion that plaintiffs' proofs did not establish a
cause of action for defamation. Ante at ___ (slip op. at 21-23).
jury. The Court's explanation of the applicable legal principles
is virtually flawless, but in my view it errs grievously in
applying the law to the facts.
[Ante at ___ (slip op. at 23).]
In that respect, the Court's observations track the analysis
in the Restatement of Torts on which the Court relies:
[Restatement (Second) of Torts
The United States Supreme Court recently expressed similar
views in assessing the potentially defamatory nature of
expressions of opinion:
If a speaker says, "In my opinion John
Jones is a liar," he implies a knowledge of
facts which lead to the conclusion that Jones
told an untruth. Even if the speaker states
the facts upon which he bases his opinion, if
those facts are either incorrect or
incomplete, or if his assessment of them is
erroneous, the statement may still imply a
false assertion of fact. Simply couching
such statements in terms of opinion does not
dispel these implications; and the statement,
"In my opinion Jones is a liar," can cause as
much damage to reputation as the statement,
"Jones is a liar."
[Milkovich v. Lorain Journal Co.,
497 U.S. 1,
18-19,
110 S. Ct. 2695, 2705-06,
111 L. Ed.2d 1, 17-18 (1990).] The record informs us that Zelikovsky was the "principal financier" for the slate of directors ele |