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                            SUPERIOR
COURT OF NEW JERSEY

                            APPELLATE
DIVISION

                            A-4797-99T5

        Submitted April
25, 2001 - Decided July 2, 2001

        Before Judges Keefe,
Eichen and Steinberg.

        On appeal from
Superior Court of New Jersey, Law Division, Camden County,
L-8387-98.

        Sagan &
Greenberg, attorneys for appellant (B. Adam Sagan, of counsel;
Jeffrey Zajac, on the brief).

        McCarter &
English, attorneys for respondents (Richard M. Eittreim, of counsel;
Katie A. Gummer and Eric D. Sherman, on the brief).

        The opinion of the
court was delivered by

STEINBERG, J.A.D.

    Plaintiff Sally Starr Gray appeals from an
order granting summary judgment in favor of defendants Press
Communications, L.L.C., Jeff Diminski, and Leigh Jacobs. The order
resulted in the dismissal of the complaint for defamation that she
had filed against them. We reverse.

    In support of their motion for summary
judgment, defendants filed a biographical profile of plaintiff.
According to that profile, plaintiff began her entertainment career,
in radio, in the 1940's. She served as the regional voice of the
Pepsi-Cola Company doing all of its commercial spots. Eventually, she
commenced performing on radio full-time. In 1950, she commenced
hosting a children's television program in Philadelphia. The show
lasted through 1972, and featured cartoons, live acts, as well as
personal appearances from Roy Rogers, Dale Evans, Dick Clark, Jerry
Lewis, Tim Conway, Jimmy Durante, Nick Adams, the Three Stooges, and
others. At her deposition, she said she also completed one personal
appearance per day, and up to three such performances on Saturdays.
In addition, she said at her deposition that in the early 1980's, she
re-entered the personal appearance market, after she had moved back
to the Delaware Valley area from Florida, and began to make
appearances on behalf of businesses and charities. Moreover, she said
she participated in various community organizations. For example, she
was on the Board of Directors of what she referred to as a "No-Kill
Animal Shelter" as well as the Alzheimer's Foundation. She also said
she did appearances for the Children's Miracle Network, Manna, which
was described as an organization that served meals at home to people
suffering from AIDS. She also did personal appearances for the AIDS
Foundation. Additionally, she has appeared on behalf of many
charitable organizations.

    She also stated that she appeared in the
Philadelphia Gay Pride Parade, where her participation was limited to
riding on the back of a convertible and waving to people.
Additionally, she made several paid appearances at an outdoor
festival in Philadelphia, held in connection with the Gay Pride
festivities.

    At the time of the incident that gave rise to
this litigation, defendant Jeff Diminski was the co-host of an
afternoon, call-in radio program, on FM 101.5, a New Jersey radio
station. Press Communication, LLC, was the licensee of 101.5. Jacobs
was the program director.

    At his deposition, Diminski said the program
was "largely, while topical and newsie, very entertainment driven."
He defined entertainment driven as "[n]on-political, not so
much serious debate of issues, non-public affairs, more humor-based."
He and his co-host, Bill Doyle, operated under guidelines, provided
by the station, to appeal to an audience between the ages of
twenty-five to fifty-four, and focused their discussion on

        things that were
going on in New Jersey, both out of the news, as well as just
life-style things like parking disputes at a New Jersey mall during
Black Friday, the day after Thanksgiving. And to do it with an eye
toward a younger audience, meaning something fresh, something funny,
little edgy, but certainly within certain guidelines. As far as
taboo, we were sort of told, a dead end street was never to talk
about gun control or abortion and it's getting much more public
affairs kind of thing.

    On July 24, 1998, the show was centered on
children's television programs and callers were asked to discuss
their childhood, or name their children's favorite shows. The
transcript of the relevant portions of the program that gave rise to
this lawsuit, which was furnished to the motion judge, reveals that a
person named Sally called in to give the name of her two favorite
shows, and the following exchange occurred:

        SALLY:    Two
shows, Sally Starr Show.



        DIMINSKI:    That
was the lesbian cowgirl I think.

        SALLY:    Yeah.

        DOYLE:    Yeah.
And what. What?

        DIMINSKI:    The
lesbian cowgirl, Sally Starr.

        SALLY:    Oh,
you're sick. The next show is the Jean London Show. I am not calling
anymore. That was really gross. Goodbye.

        DIMINSKI:    Okay.
Sorry.

    At his deposition, which was also supplied to
the motion judge, Diminski explained the basis for, and the
reasoning, behind his comment. He said that since he had been raised
in North Jersey, he had never heard of Sally Starr until sometime in
the 1980's, when he and his wife's family who were from Philadelphia
were "kind of sitting around talking about old things in Philly which
of course I wasn't privy to." He had never seen her show and it was
explained to him that she was a "cowgirl television show host."

    Diminski then mentioned three occasions in
which he had heard that plaintiff was a self-identified lesbian. He
said that on one occasion "the next door neighbor and friends or
something," of his in-laws, mentioned that they had heard on the
local news that "Sally Starr had been involved with the Gay Pride
parade and how Sally Starr had been a so-called out lesbian." He also
remembered one occasion "probably in 1995 or something like that"
while he was working on his car when he "heard this conversation. I
remembered back to the other conversation from the 80's about who
Sally Starr was." Finally, he mentioned an occasion, "probably around
1988 or 1989" at "some club" where he was performing as a stand-up
comedian, and some of the comedians were having a conversation about
plaintiff, and "it wasn't said in a joking way or even in a demeaning
way but just about how she had in later life, I hate to use the term
came out of the closet and had acknowledged that she was a lesbian."
He said he "just had heard various things like that to the point
where I thought it was just sort of common knowledge for people who
were in that area, who were in the Delaware Valley or had grown up
watching her. But I for one did not even know what the woman looked
like."

    Defendant was unable to identify any of the
individuals in these conversations. He also said to the best of his
recollection, he never read an interview with plaintiff where she
identified herself as a lesbian.

    Plaintiff learned of the comment from friends
who listened to the show. She called the radio station immediately,
and apparently reached Diminski's call screener, but "couldn't get
any where with him." She asked to speak to Jacobs, the program
director. She complained that Diminski had referred to her as a
"lesbian cowgirl." Jacobs said that he did not hear the comment, but
would "go into the studio and correct it." Diminski retracted the
statement, noting "[i]t has been very informative today. We
have learned about sex offenders' rights. We learned about diamonds.
We learned Sally Starr is not a lesbian."

        DIMINSKI:    So
here is what's really funny is our boss gets a phone call. Now our
boss didn't hear us talking about this. All he knows all of a sudden
Sally Starr is on the phone with our boss screaming about me calling
her a lesbian.

        DOYLE:    Sally
Starr is somebody he watched as a kid. So it was a very interesting
episode.

        DIMINSKI:    Right.
But it was very bizarre and surreal for him so I just wanted to say
that apparently she is not and I apologize for that because I know
that I wouldn't want to be called a lesbian so she is not a lesbian.
It is six o'clock.

    At the hearing on defendants' motion for
summary judgment, the judge preliminarily stated that "plaintiff is a
public figure." Plaintiff's attorney apparently acquiesced in that
comment and indeed on this appeal does not suggest
otherwise.See footnote
1¹ The judge concluded that in order to prevail,
plaintiff must demonstrate, by clear and convincing evidence, that
defendant's statement was accompanied by malice, that it was made
with "knowledge of the probable falsity of the statement." The judge
concluded that the materials furnished him did not establish
"anything close to clear and convincing evidence" that Diminski
either acted with malice, or in reckless disregard of the truth.

    On this appeal, plaintiff argues that the
motion judge erred in granting summary judgment because: (1) the term
"lesbian cowgirl" is reasonably susceptible of a defamatory meaning,
and (2) summary judgment should have been denied since a reasonable
factfinder could find by clear and convincing evidence that Diminski
uttered his comment "knowing that it was false or seriously doubting
its truth."

    It is well-settled that in deciding whether
to grant summary judgment, the motion judge must "consider whether
the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995). Summary judgment
must be granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits,
if any, show that there is no genuine issue of as any material fact
challenged and that the moving party is entitled to a judgment or
order as a matter of law. An issue of fact is genuine only if,
considering the burden of persuasion at trial, the evidence submitted
by the parties on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require submission of
the issue to the trier of fact." R. 4:46-2(c). The judge's
function is to determine whether there is a genuine issue for trial,
but not to weigh the evidence or decide the issue. Brill,
supra, 142 N.J. at 540. An alleged disputed issue of
fact is not considered genuine if there exists a single unavoidable
resolution of that issue. Ibid. Stated another way, "if the
evidence is so one-sided that one party must prevail as a matter of
law, the trial court should not hesitate to grant summary judgment."
Ibid. (internal citation omitted). An appellate court applies
the same standard that governs trial courts in determining whether
summary judgment was properly granted. Graziano v. Grant,
326 N.J. Super. 328, 338 (App. Div.
1999).

    In a defamation action, the threshold issue
is whether the language used is reasonably susceptible of a
defamatory meaning. Decker v. Princeton Packet, 116 N.J. 418, 424 (1989); Romaine v.
Kallinger, 109 N.J. 282, 290-91 (1988); Kotlikoff
v. The Community News, 89 N.J. 62, 67 (1982). Initially, the
question is one of law to be decided by the court. Decker,
supra, 116 N.J. at 424; Kotlikoff, supra,
89 N.J. at 67. If the statement is susceptible of only one
meaning, and that meaning is defamatory, the statement is defamatory
as a matter of law. Romaine, supra, 102 N.J. at
290. On the other hand, if the statement is susceptible of only a
non- defamatory meaning, it cannot be considered defamatory, and the
complaint must be dismissed. Ibid. However, in those cases
where the statement is capable of being assigned more than one
meaning, one of which is defamatory and another not, the question of
whether its content is defamatory is one that must be resolved by the
factfinder. Id. at 290-91.

    Our research has failed to disclose a case in
New Jersey considering whether an accusation of homosexuality is
defamatory. However, the majority of jurisdictions in other states
that have considered the issue have concluded that a false accusation
of homosexuality is actionable. See, for example, Bohdan v.
Alltool Mtg. Co., 411 N.W 2d, 902, 907 (Minn. Ct. of App. 1987)
(false accusation that plaintiff's sexual preference was other than
heterosexual is at least reasonably susceptible of a defamatory
meaning); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 312 (Mo. Sup. Ct. 1993),
rehearing denied, September 28, 1998 (allegation of
homosexuality is defamatory per se); Thomas v. Bet Sound-Stage
Restaurant/BrettCo, Inc., 61 F. Supp 2d, 448 (D. Md. 1999) (false
statements regarding plaintiff's sexual preference are defamatory);
Moricoli v. Schwartz, 361 N.E.2d 74, 76 (Ill. App. Ct. 1977)
(accusation of homosexuality is actionable but not libelous per se
and requires proof of special damages); Hayes v. Smith,
832 P.2d 1022 (Colo. Ct. App. 1992)
(same); Hess v. Newton, 596 S.W.2d 209. 210 (Tex. Civ. App.
1980) (false accusation or homosexuality is slanderous per se).
Although society has come a long way in recognizing a persons' right
to freely exercise his or her sexual preferences, unfortunately, the
fact remains that a number of citizens still look upon homosexuality
with disfavor. Accordingly, we conclude that at the very least, a
false accusation of homosexuality is reasonably susceptible to a
defamation meaning.

    In order to prove defamation, a
plaintiff must establish that defendant made a defamatory statement
of fact concerning plaintiff, which was false, and was communicated
to a person or persons other than plaintiff. Govito v. West Jersey
Health System, 332 N.J. Super. 293, 305 (App. Div.
2000). A defamatory statement is one that tends to harm the
reputation of the plaintiff or to lower plaintiff in the estimation
of the community or deter third persons from associating or dealing
with him or her. Ibid. Moreover, a plaintiff must establish
damages. Ibid.

    As previously noted, plaintiff conceded she
was a public figure. Because of the strong interests in uninhibited
debate on public issues, our court's have held that the First
Amendment protects statements made concerning public officials,
or public figures, unless those statements are made with knowledge
that they were false or with reckless disregard of whether they were
false or not. New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct.,
710, 726, 11 L. Ed.2d 686, 706 (1964); Curtis
Publishing Co. v. Butts, 388 U.S. 130, 164 87 S. Ct. 1975 (1996, 18 L. Ed.2d 1094, 1116 (1967);
Sisler v. Gannett Co., Inc., 104 N.J. 256, 263 (1986).

    "To satisfy the actual-malice standard, a
plaintiff must show by clear and convincing evidence that the
publisher either knew that the statement was false or published with
reckless disregard for the truth." Lynch v. New Jersey Educ.
Ass'n., 161 N.J. 152, 165 (1999) (internal
citations omitted). To prove that the publication was made with
reckless disregard for the truth, "a plaintiff must show that the
publisher made the statement with a 'high degree of awareness of
[its] probable falsity,' or with 'serious doubts' as to the
truth of the publication." Ibid. (internal citations omitted).
While negligent publication does not satisfy the actual-malice test,
a finding of reckless publication may result if the publisher either
fabricates a story, or publishes a story or accusation that is wholly
unbelievable, or relies on an informant of dubious veracity, or
purposely avoids the truth. Ibid. (internal citations
omitted). While initially the question of malice must be determined
by the court as question of law, summary judgment may only be granted
if a reasonable factfinder could not find that plaintiff had
established malice by clear and convincing evidence. Lynch,
supra, 161 N.J. at 168-69.

    We recognize that litigation, particularly
this type of litigation, is expensive, and, consequently,
non-meritorious defamation claims have a tendency to compromise or
chill the exercise of First
Amendment values. As a result, a court should not be reluctant to
grant summary judgment if the defamation claim lacks merit. Rocci
v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149, 158 (2000); Costello v.
Ocean County Observer, 136 N.J. 594, 605 (1994); Maressa v.
New Jersey Monthly, 89 N.J. 176, 196, cert. denied,
459 U.S. 907, 103 S. Ct. 211, 74 L. Ed.2d 169 (1982).

    Acknowledging our responsibility to review
the record and determine whether plaintiff introduced sufficient
proof to establish that defendants abused their First
Amendment privileges, and at the same time heed the admonition of
the Supreme Court not to be reluctant to grant summary judgment in
this type of case, we conclude that the judge erred in granting
summary judgment. We recognize that in this type of case a plaintiff
must produce substantial evidence to survive a motion for summary
judgment. Costello, supra, 136 N.J. at 615. We
also recognize that while we are constrained to construe the evidence
in the light most favorable to plaintiff, the clear and convincing
standard in a defamation case adds an additional weight to
plaintiff's burden. Ibid. On the other hand, ordinarily, where
a party's state of mind is critical, and there is a genuine critical
issue of material fact as to the state of mind, summary judgment
should be denied since the issue of state of mind does not readily
lend itself to summary disposition. Costello, supra,
136 N.J. at 615; Shebar v. Sanyo Bus. Sys. Corp.,
111 N.J. 276, 291 (1988). Rarely will
direct evidence be available to prove state of mind. Costello,
supra, 136 N.J. at 615. Hence, we are understandably
reluctant to grant summary judgment if the issue of malice is
present, provided that if when considered in the light most favorable
to plaintiff, the reasonable inferences to be drawn from the evidence
could lead a factfinder to conclude that defendant acted with malice,
or, in reckless disregard of the truth. Ibid.

    Here, we are satisfied that a reasonable
factfinder could conclude by clear and convincing evidence, based
upon the statement of Diminski, that he acted with reckless disregard
of the truth in uttering this statement. To say the least, his
sources were of dubious veracity. Indeed, they are so vague that a
jury could find that they were contrived after the fact. In addition,
a jury would reasonably conclude, in light of the vague nature of his
recollection, that Diminski's statement that it was common knowledge
that plaintiff is a lesbian, was not credible. Thus, we determine
that the motion judge erred in granting summary judgment.

    Presumably, because the motion judge found
that plaintiff had failed to meet her burden with respect to
establishing malice by clear and convincing evidence, he never
reached defendants' additional contention that the comments were not
defamatory in the first instance since they constituted parody, humor
or a satire. Without expressing any opinion on the merits of
defendants' contention, we decline to address the issue since it was
not ruled upon in the first instance by the motion judge.
Subcarrier Communications, Inc. v. Day, 289 N.J. Super. 634, 646 (App. Div.
1997).

    Our decision today should not deter
responsible members of the print and electronic media from freely
exercising their First Amendment privilege. Indeed, free and open
debate, as well as dissemination of thought or opinions on public
issues is one of the cornerstones of our democracy. The bar is
understandably high for a plaintiff to successfully assert this type
of cause of action, and plaintiff must therefore meet a high
threshold in order to defeat a motion for summary judgment. While the
bar is properly set at a high level, it is not unattainable. If it
were, there would be absolute immunity. We merely conclude that under
the circumstances here presented a reasonable factfinder could
conclude by clear and convincing evidence that Diminski acted with
reckless disregard for the truth, and, consequently, the motion for
summary judgment should have been denied.

    Reversed and remanded for further proceedings
not inconsistent with this opinion.

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