N.J. Model Civil Jury Charge 3.11A

3.11A PUBLIC DEFAMATION (Approved 03/2010; Revised 11/2022)

NOTE TO JUDGE

The instructions set forth below apply only where the plaintiff is a

public official or public figure, or where the plaintiff is a private person,

but the defamatory statements involve a matter of legitimate public

concern.

1. General Element

1

For you to find that [plaintiff] is entitled to recover damages from [defendant]

for defamation, you must find by clear and convincing evidence that [defendant]

communicated to a person other than [plaintiff] a false and defamatory statement of

1 The burden of proof imposed depends upon and is tied to the status of the plaintiff and the subject

matter of the defamatory statement. Where the plaintiff is a public official or a “public figure”

and the subject matter of the defamatory statement is a matter of legitimate public concern, the

standard of proof is “clear and convincing” evidence. See New York Times v. Sullivan, 376 U.S.

254, 84 S.Ct. 710, 11 L.Ed. 2d 83 (1964); Gertz v. Robert Welch, Inc. , 418 U.S. 323, 945 S.Ct.

2997, 41 L.Ed. 2d 789 ( 1974); Lawrence v. Bauer Pub. Co., 89 N.J. 451 (1982); Marchiano v.

Sandman, 178 N.J. Super. 171 (App. Div.), certif. denied , 87 N.J. 392 (1981); Vassallo v. Bell ,

221 N.J. Super. 347 (App. Div. 1987) [involving a “limited purpose” public figure]. In addition,

where plaintiff is a private figure and the subject matter of the defamatory statement is a matter of

legitimate public concern, the standard of proof is also clear and convincing. See Pitts v. Newark

Bd. of Educ., 337 N.J. Super. 331 (2001); Burke v. Deiner, 97 N.J. 465 (1984); Costello v. Ocean

County Observer, 136 N.J. 595 (1994). The trial judge must make the determination as to the

status of the plaintiff (public or private person) and, if a private person, whether the statements

complained of by a private person are a matter of legitimate public concern. See Lawrence v.

Bauer Pub. Co., supra; Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125 (1986); Rocci v. Ecole

Secondaire, 165 N.J. 149 (2000) (expanding the definition of what is deemed to be “of public

concern”). See also Senna v. Floriment, 196 N.J. 469 (2008). See further Berkery v. Kinney, 397

N.J. Super. 222 (App. Div. 2007), certif. denied, 194 N.J. 445 (2008), in which the court held that

once a person becomes a public figure, even if the person subsequently adopts a private lifestyle,

the person remains a public figure thereafter for purposes of later commentary or treatment of that

commentary.

fact2 concerning [plaintiff] with actual knowledge that the statement was false or

with re ckless disregard of its truth or falsity, thereby causing [plaintiff] to incur

actual damages.

[Plaintiff] must prove five elements by clear and convincing evidence to

prevail here. These five elements are: (1) that [defendant] made a defamatory

statement of fact; (2) concerning [plaintiff]; (3) which was false and (4) which was

communicated to at least one person other than [plaintiff] (5) with [defendant’s]

actual knowledge that the statement was false or with [defendant’s] reckless

disregard of the statement’s truth or falsity. I will now explain each of these five

elements.

2. Elements

a. That [defendant] made a defamatory statement of fact.

A defamatory statement is a statement of fact which is injurious to the

reputation of [plaintiff], or which exposes [plaintiff] to [choose applicable category]

hatred, contempt or ridicule, or to a loss of the good will and confidence felt toward

2 A defamatory statement may consist of libel or slander. Dairy Stores, Inc. v. Sentinel Publ'g

Co., 104 N.J. 125, 133, 516 A.2d 220 (1986) (citing Prosser and Keeton on Torts § 111 at 771

(5th ed. 1984)); Rodney A. Smolla, Law of Defamation § 1:10 (2d ed. 2008).

[plaintiff] by others, or which has a tendency to injure [plaintiff] in [plaintiff’s] trade

or business.3

To be defamatory, the statement must be a statement of fact. Statements of

opinion are not actionable. You must not consider them in any way.4

Here, the st atement of fact alleged t o have been made by [defendant] is

___________________. This may be interpreted in two ways: First, it may be

understood to mean ______________________. This meaning is clearly

defamatory to [plaintiff] if it exposed [plaintiff] to the contempt and ridicule of

others; it is in this sense that [plaintiff] contends that it was generally understood.

The second meaning, however, is _______ ________. In this sense, of course, the

statement is innocent and non- defamatory, and it is in this sense that [defendant]

contends it was understood.5

3 See Maressa v. New Jersey Monthly, 89 N.J. 176 (1982), certif. denied, 459 U.S. 907, 103 S.Ct.

211, 74 L.Ed. 2d 169 (1982); Dairy Stores, Inc. v. Sentinel Pub. Co., supra; Restatement (Second)

of Torts § 559 (1977).

4 The trial court must preliminarily determine whether any of the statements complained of are

statements of opinion. If there are any statements of opinion in the publication complained of, the

jury must be instructed that these statements are privileged and are not to be considered in any way

in their deliberations. See Gertz v. Robert Welch, Inc., supra; Kotlikoff v. The Community News,

89 N.J. 62 (1983); Maressa v. New Jersey Monthly, supra; Dunn v. Gannett New York Newspapers,

Inc., 833 F. 2d 446 (3d Cir. 1987); Karnell v. Campbell , 206 N.J. Super. 81 (App. Div. 1985);

Restatement (Second) of Torts § 566 (1977).

5 The trial court must preliminarily determine whether the statement is defamatory on its face.

Only when the court finds that a statement is capable of both a defamatory and non- defamatory

interpretation is the issue to be submitted to the jury. See Lawrence v. Bauer Pub. Co., supra;

You must determine, in light of all the evidence, if the words used by

[defendant] were understood in their defamatory sense by the reasonable person who

read [heard] them. In this regard, you are, of course, free to consider the common

and ordinary meaning of the words used in the context of the statement, but bear in

mind that your deliberations are not to be governed solely by what you yourselves

believe to be the meaning of the language used nor, indeed, by what you personally

believe [defendant] intended to be understood. The test is what you find from all the

evidence the words were understood to mean by the reasonable person who read

[heard] them.6

b. The plaintiff must prove that the defamatory statement concerned

the plaintiff.

The second element that plaintiff must prove by clear and convincing

evidence is that the defamatory s tatement was read [heard] and understood by at

least one other person to concern [plaintiff].7 The defamatory statement read [heard]

Romaine v. Kallinger , 109 N.J. 282, 290-91 (1988); State v. Browne , 86 N.J. Super. 217 (App.

Div. 1965); Sokolary v. Edlin, 65 N.J. Super. 542 (App. Div. 1961); Mosler v. Whelan , 48 N.J.

Super. 491 (App. Div. 1958), rev’d, 28 N.J. 397 (1958). When the statement is only capable of a

defamatory interpretation, the plaintiff need not establish this element and it should be eliminated

from the instruction.

6 See Restatement (Second) of Torts § 563 (1977).

7 See Gnapinsky v. Goldyn, 23 N.J. 243 (1957); Scelfo v. Rutgers Univ., 116 N.J. Super. 403 (Law

Div. 1971); Dijkstra v. Westerink, 168 N.J. Super. 128 (App. Div. 1978); Restatement (Second) of

Torts § 564 (1977). Where the defamatory statement concerns a group or class of persons of which

plaintiff is a member, the plaintiff must establish some reasonable application of the words to

by at least one person other than [plaintiff] was reasonably understood by them to

refer to [plaintiff]. The actual naming of [plaintiff] is not necessary so long as those

who read [heard] the statement understood th at [plaintiff] was the subject of the

statement. You are not to decide whether [defendant] intended the statement to refer

to [plaintiff]; the issue is whether those persons reading [hearing] the statement

reasonably understood the statement to refer to [plaintiff].

c. Plaintiff must prove that the defamatory statement is false.

The third element that [plaintiff] must prove by clear and convincing evidence

is that the defamatory statement was false. 8 Here, [plaintiff] contends the

defamatory statement is false ; [defendant] denies that the statement is false. You

must determine if the statement is true or false. In this regard, it is not necessary for

you to find the statement true or false in every detail. It is enough if the defamatory

gist or sting of the statement is substantially true or substantially false. In

[plaintiff]. See Mick v. American Dental Ass’n , 49 N.J. Super. 262, 285-87 (App. Div. 1958);

Restatement (Second) of Torts § 564A (1977).

8 See Pitts v. Newark Bd. of Educ., supra; Rocci v. Ecole Secondaire, supra (where the Supreme

Court stated that defamation exists where the defendant otherwise acted with reckless disregard of

truth); also see footnote 10 concerning the fifth element as t o definition in defamation law of the

term “actual malice.” Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89

L.Ed. 2d 783 (1986); Sisler v. Gannett Co. Inc. , 104 N.J. 256 (1986); Herrmann v. Newark

Morning Ledger Co., 48 N.J. Super. 420 (App. Div. 1958), aff’d on reh’g, 49 N.J. Super. 551 (App.

Div. 1958); LaRocca v. New York News, Inc. , 156 N.J. Super. 59 (App. Div. 1978); Scelfo v.

Rutgers Univ., supra; Dorney v. Dairymen’s League Co-op. Ass’n, 149 F. Supp. 615 (D.N.J. 1957);

Restatement (Second) of Torts § 581A (1977).

determining the truth or falsity of the statement, you must consider the entire context

of the statement; words or phrases must not be isolated or taken out of context.

d. Plaintiff must prove that the defamatory statement was

communicated to a person or persons other than the plaintiff.

The fourth element [plaintiff] must prove by clear and convincing evidence is

that the defamatory statement was communicated, orally or in writing, to at least one

person other than [plaintiff].9 Therefore, it is not necessary that the defamatory

statement be communicated to a large or substantial group. It is enough that it is

communicated to a single person other than [plaintiff], so long as that recipient

understood the statement in its defamatory sense.10

e. Plaintiff must prove that defendant communicated the false

statement to others with the actual knowledge that it was false or

with a reckless disregard of whether it was true or false.

The fifth element plaintiff must prove by clear and convincing evidence is that

defendant acted with actual malice when communicating the statement to at least

one other person. Actual malice exists if [defendant] knew that the statement was

9 See Gnapinsky v. Goldyn, supra at 252-53; Restatement (Second) of Torts § 577 (1977). Note

that the communication of a defamatory statement to a third person may be qualifiedly privileged.

See text and footnotes on Qualified Privilege under “Private Defamation” (Charge 3.11B), infra.

10 See Restatement (Second) of Torts § 577, cmts. b-c (1977); Rocci v. Ecole Secondaire, supra;

Pitts v. Newark Bd. of Educ., supra (courts have held that a plaintiff should not be able to recover

for the harm flowing from republication of a defamatory statement when the plaintiff knowingly

causes the material to be distributed).

false or acted in reckless disregard of whether it was true or false.11 This means that

[defendant] must have actually known that the defamatory statement regarding

[plaintiff] was false when [defendant] communicated it, or that [defendant]

communicated the defamatory statement with a high degree of awareness that it was

probably false, or that [defendant] truly had serious doubts as to the truth of the

defamatory statement when [defendant] communicated it.

3. Burden of Proof

As noted before, [Plaintiff] must prove each of the five elements I have just

explained to you by clear and convincing evidence. Clear and convincing evidence

means that proofs should produce in your minds a firm belief or conviction as to the

truth of the claims made by [plaintiff]. The evidence must be as clear, direct and

weighty and convincing as to enable a jury to come to a clear conviction, without

hesitancy, of the truth of precise facts in issue.

12 Clear and convincing is a standard

of proof which requires more than a mere balancing of doubts or probabilities. It

11 The plaintiff must prove “actual malice” which exists when a defendant has actual knowledge

that the statement defendant is making is false or when defendant entertains serious doubts as to

its truth. See Pitts v. Newark Bd. of Educ., supra; Burke v. Deiner, supra; see New York Times v.

Sullivan, supra; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed. 2d 125 (1964); St.

Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed. 2d 262 (1968); Lawrence v. Bauer Pub.

Co., supra; Marchiano v. Sandman, supra; Binkewitz v. Allstate Ins. Co. , 222 N.J. Super. 501

(App. Div.), certif. denied, 113 N.J. 378 (1988).

12 Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960); see Matter of Jobes , 108

N.J. 394, 407 (1987); State v. Hodge, 95 N.J. 369, 376 (1984).

requires clear evidence which causes you to be convinced that the allegations sought

to be proved are true.

If [plaintiff] proved each of the five elements I have outlined by clear and

convincing evidence, [plaintiff] has met [plaintiff’s] burden of proof and is entitled

to your verdict. If, however, [plaintiff] has failed to prove by clear and convincing

evidence any of these elements, you must return a verdict for [defendant].