John C. Berkery, Sr. v. Estate of Lyle Stuart

In a second attempt to obstruct the publication of a book

that is critical of his conduct, plaintiff John C. Berkery

appeals from the summary dismissal of his action against

defendants - author Allen M. Hornblum, and distributors Barnes &

Noble, Inc., Amazon.Com, Inc., Barricade Books, Inc. (NY),

Barricade Books, Inc. (NJ), National Book Network, Inc., Rowman

& Littlefield Publishing Group, Inc., Borders, Inc. and Borders

Group, Inc. In granting summary judgment, Judge Fernandez-Vina

concluded that no reasonable jury could conclude that these

defendants acted with actual malice.

On appeal, plaintiff argues that the judge erred in

concluding that plaintiff did not establish actual malice on the

part of the author and distributors. He contends that several

statements that were made about him in the book are patently

false, and that the author is a "reckless researcher and a

proven liar."

Previously, in Berkery v. Kinney, 397 N.J. Super. 222 (App.

Div. 2007), certif. denied, 194 N.J. 445 (2008) (Berkery I),

plaintiff sued a journalist and her publisher regarding

statements made in newspaper articles about plaintiff's efforts

to stop the same publication involved in this litigation -

Confessions of a Second Story Man: Junior Kripplebauer and the

K&A Gang (Confessions), a book about the activities of a group

of criminals in Philadelphia during the 1950s and 1960s. In

Berkery I, we affirmed the trial court's summary dismissal of

plaintiff's complaint, holding that plaintiff had failed to

submit sufficient evidence from which a jury could conclude the

defendants acted with actual malice.

Although plaintiff argues that the legal standard set forth

in Berkery I should not be applied here, we disagree. Here,

plaintiff failed to present clear and convincing evidence from

which a reasonable jury could have concluded that defendants

acted with actual malice. His proffered proofs, which consisted

of self-serving denials and irrelevant accusations, failed to

satisfy his burden. We now affirm.

These are the facts adduced from the expansive record on

the motion for summary judgment. Hornblum is an assistant

professor of geography and urban studies at Temple University.

In 2001, he began research for a book about the K&A Gang, a

group of burglars that operated in the Kensington and Allegheny

section of Philadelphia in the 1950s and 1960s. To that end, he

attempted to find as many "old-time members" of the gang as

possible.

Hornblum contacted plaintiff and arranged to meet him for

lunch at a local restaurant.1 To Hornblum's surprise, plaintiff

arrived at the restaurant accompanied by a man whom Hornblum did

not know and who made Hornblum feel uncomfortable. At that

point, Hornblum decided that it was not necessary to discuss the

K&A Gang with plaintiff since plaintiff would only be a

"peripheral figure" in the book.

Plaintiff nevertheless learned of Hornblum's plan to write

In a February 27, 2001 letter, he warned Hornblum Confessions.

to "scrap this mischievous project" or plaintiff would "reap the

rewards litigation will surely bring." Notwithstanding this

entreaty, Hornblum continued with his research, interviewing

several people who claimed to have knowledge of plaintiff's

involvement with the K&A Gang. He also amassed a large number

of newspaper articles, government documents and police records

containing information about plaintiff.

Confessions was initially published by the Temple

University Press (the Press) in 2005. On May 28, 2005,

plaintiff wrote to that publisher's editor-in-chief, demanding

that his name and likeness be removed from the book and

threatening legal action if they were not. In response to this

letter, the Press put a hold on all future shipments of the book

and recalled copies that had already been shipped. Ultimately,

it terminated its publishing agreement with Hornblum.

After Hornblum's agreement with the Press fell through, he

reached an agreement with defendants Lyle Stuart and Barricade

Books, which published Confessions in early 2006. In February

2006, plaintiff sent letters to defendant booksellers, informing

them that he had filed a civil complaint against Hornblum and

demanding that they stop distributing the book immediately.

Plaintiff filed an amended complaint against Hornblum; book

distributors/sellers Barnes & Noble, Inc., Amazon.Com, Inc.,

National Book Network, Inc., its parent, Rowman & Littlefield

Publishing Group, Inc., and Borders Group, Inc.; and publishers

Estate of Lyle Stuart, Barricade Books, Inc. (New York) and

Barricade Books, Inc. (New Jersey), asserting numerous causes of

action based on allegedly defamatory statements set forth in

Confessions, in newspaper articles concerning the book and on

the Internet website of Barricade Books.

In his amended complaint, plaintiff alleged that he was

defamed on at least twenty of Confessions' 273 pages. He cited

the following thirteen "facts" set forth in the book as being

malicious falsehoods: plaintiff attempted to murder Robert

Poulson in Camden County in 1960; police investigating the

assault on Poulson found blood on the back seat of plaintiff's

car; police arrested plaintiff and charged him with shooting

Poulson; police released plaintiff because they could not "make

the charges stick"; six months after Poulson was shot, plaintiff

was arrested for the murder of Vincent Blaney; plaintiff was the

most likely "candidate" in connection with the car-bombing death

of Richard Blaney in 1961; plaintiff robbed the home of a

Pottsville, Pennsylvania, coal mine operator and "got away" with

$478,000; after plaintiff successfully had his robbery

conviction set aside, the only reason plaintiff was not retried

was that local authorities "had had enough"; plaintiff was the

"main nexus between Irish mobsters and the Mafia"; in 1987

plaintiff was convicted of distributing twenty-four pounds of

methamphetamine and possession of more than 200 gallons of

phenyl-2-proponane (P-2-P); plaintiff is "particularly dangerous

for he combines intelligence and street smarts with a reputation

for muscle"; plaintiff has "a cunning and sophistication that

has little equal in the Philadelphia criminal community"; and

plaintiff was recently released from prison and is now "back on

the street."

Plaintiff filed a motion for summary judgment, which was

denied. Defendants then moved for summary judgment, which was

partially granted, and the judge issued an order dismissing all

claims against Hornblum and the book distributors. He also

granted summary judgment in favor of the publishers as to all

claims arising from statements in Confessions but denied summary

judgment as to statements made in the publishers' newsletters

and on their website. Plaintiff's subsequent motion for

reconsideration was denied, but the parties filed a consent

order dismissing the complaint as to the publishers by reason of

a settlement.

In support of his motion for summary judgment, plaintiff

submitted excerpts from Confessions; correspondence between

himself and defendants; court decisions reversing his

convictions for robbery and drug trafficking; court records

containing his criminal history; the deposition and

interrogatory responses of Hornblum; a certification of Jane

Golding, a Temple librarian, that impugned Hornblum's research

techniques; certifications from himself disputing the accuracy

of Hornblum's research; and copies of his resume and college

diplomas.

In denying plaintiff's motion, the judge noted that the

majority of plaintiff's allegations "as to Mr. Hornblum . . .

are that he's shown himself to be someone devoid of character,

lacking any sort of credibility, a purposeful liar, and

manipulator." The judge gave little credence to the allegations

set forth in Golding's certification, however, observing that as

Hornblum's former girlfriend, she had several motives for

criticizing him.

Reasoning that plaintiff achieved pervasive fame and

notoriety as the result of his involvement with methamphetamine

trafficking and his conspiracy with organized crime figures, the

judge concluded that plaintiff is a limited-purpose public

figure. He further found that under the standard applied to

limited-purpose public figures in defamation actions, plaintiff

could prevail only if he showed that defendants acted with

actual malice. He concluded that summary judgment in favor of

plaintiff was inappropriate because plaintiff had failed to

establish that there was no issue of material fact with regard

to defendants' malice.

In support of their motion for summary judgment, defendants

submitted materials used by Hornblum as information sources.

These submissions included a presentence report prepared for the

United States District Court, Eastern District of Pennsylvania,

in 1987 that lists plaintiff's convictions going back to age

nineteen; two reports of the Pennsylvania Crime Commission, in

which plaintiff's name figures prominently; excerpts from three

books about organized crime in Philadelphia that mention

plaintiff's association with the Mafia; hundreds of newspaper

articles about plaintiff's criminal acts; FBI files containing

plaintiff's criminal history and an interview with a mob

informant who implicated plaintiff in a murder; handwritten

notes of Hornblum's interviews with informants; the sentencing

memorandum submitted by the United States following plaintiff's

conviction for drug trafficking in 1987; and a transcript of

plaintiff's deposition testimony.

In ruling on defendants' motion, Judge Fernandez-Vina

incorporated his prior determinations as to plaintiff's status

as a limited-purpose public figure and the applicability of the

actual-malice standard. He granted summary judgment in favor of

Hornblum, the booksellers and the publishers as to all

statements made in Confessions, finding that there was no actual

malice proven as to any of them. The judge did note that

although plaintiff raised questions of fact concerning

Hornblum's character, these were "corollary issues" that could

not reasonably establish actual malice by clear and convincing

evidence. This appeal followed.

On appeal, plaintiff asserts that the judge erred by

concluding that he was a limited-purpose public figure; by

finding that Hornblum and his distributor were afforded the same

protection as that afforded the traditional news media; by

applying the actual malice standard to defendants' motion; and

by concluding that plaintiff had failed to create a genuine

issue of material fact. We address the issues seriatim.

In his attack on the finding that he was a limited-purpose

public figure, plaintiff challenges neither his status as a

limited-purpose public figure nor the standard of actual malice

but argues that the precedent creating plaintiff's status is

misguided. He also challenges the applicability of the actual

malice standard to defendants in this case.

The thrust, however, of plaintiff's argument is that the

statements about him in Confessions are false, and the book was

written, published and distributed with the knowledge that the

material was false. In support of these assertions, plaintiff

sets forth several examples of Hornblum's alleged lies and poor

conduct. Further, he challenges the accuracy of Hornblum's

sources by showing that they are inconsistent with plaintiff's

own certifications.

The flaws in plaintiff's arguments stem from his

misperception of the law of defamation and a focus on facts that

are irrelevant to a finding of actual malice.

Plaintiff correctly recognizes that under New Jersey

defamation law, he is a limited-purpose public figure. We

conclusively settled this issue in Berkery I, supra, 397 N.J.

Super. at 225, a defamation action brought by plaintiff against

a journalist, who wrote two articles about plaintiff's attempts

to stop Hornblum from publishing Confessions, and the

Philadelphia Inquirer, which, in fact, published the articles.

In Berkery I, after reviewing the relevant legal

principles, we noted that "recovery for defamation is limited by

the First Amendment requirement that public officials or public

Id. at 227 figures prove actual malice to recover damages."

(citing New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710,


11 L. Ed. 2d 686 (1964)). We further observed that an

individual may become a limited-purpose public figure for First

Amendment purposes if he "'voluntarily injects himself or is

drawn into a particular public controversy.'" Id. at 227

(quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.

Ct. 2997, 3013, 41 L. Ed. 2d 789, 812 (1974)).

We recognized that although "[a]n individual who engages in

criminal conduct does not automatically become a public

figure[,]" "[a]n individual's involvement in publicized criminal

activities and associations with organized criminal groups

qualifies as a public controversy or issue that gives rise to

limited-purpose public figure status." Id. at 227-28 (citing

Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1086

(3d Cir.), cert. denied, 474 U.S. 864, 106 S. Ct. 182, 88 L. Ed.

2d 151 (1985)). Considering that "plaintiff acknowledged six

criminal convictions, including larceny, passing bogus

traveler's checks, attempted burglary of an unoccupied

warehouse, assault and battery, and two drug offenses[,]" and

that plaintiff's criminal involvement was reflected in public

records, we held that "plaintiff clearly qualifies as a limited-

purpose public figure who must prove actual malice to recover in

Id. at 226, 230. We also observed that a defamation action."

"[e]ven if he were not a limited-purpose public figure, he is

still required to prove actual malice with respect to alleged

defamatory statements relating to matters of legitimate public

interest." Ibid. (citing LoBiondo v. Schwartz, 323 N.J. Super. 391, 409 (App. Div.), certif. denied, 162 N.J. 488 (1999)). See

also Senna v. Florimont, 196 N.J. 469, 485-90 (2008) (discussing

New Jersey's application of the actual-malice standard in

private-figure defamation cases in which the challenged speech

touches on matters of public concern).

We see nothing in this record that suggests that anything

has changed factually that would cause us to modify or depart

from our prior conclusions. Our reasoning in Berkery I applies

with equal force here, and we conclude that the motion judge did

not err in finding that plaintiff was a limited-purpose public

figure.


Plaintiff goes on to argue that none of defendants qualify

under New Jersey law as "media defendants." He asserts that

extending media protection to Hornblum, who has no affiliation

with the professional media, is a disservice to bona fide

journalists.

In pressing these arguments, plaintiff misconstrues the law

and the meaning of the cases that he cites. To support his

claim that the actual-malice standard should not be applied to

non-media defendants, plaintiff relies on three cases: Trump v.

O'Brien, 403 N.J. Super. 281 (App. Div. 2008); In re Madden, 151 F.3d 125 (3d Cir. 1998); and Von Bulow v. Von Bulow, 811 F.2d 136 (2d Cir. 1987). None of these cases addresses the

applicability of the actual-malice standard. Rather, they

involve a defendant's right to invoke the "journalist's

privilege" to protect source material from discovery in a

defamation action.

In Trump, for example, we considered the New Jersey

"newsperson's privilege," N.J.S.A. 2A:84A-21, and the New York

Shield Law, N.Y. Civ. Rights � 79-h, in determining that an

author, who obtained information for his book from private

informants, was a professional journalist entitled to protect

403 N.J. Super. at 290,293-94. his confidential sources.

While, as plaintiff notes, the judge did acknowledge that there


was little precedent on the issue of what constitutes "news,"

id. at 304, that comment was made solely with regard to the

interpretation of the newsperson's privilege. The judge made no

ruling as to the standard of proof that applied to the

plaintiff's defamation claim.

In Madden, supra, 151 F.3d at 126-27, the court considered

whether a sports commentator could invoke the journalist's

privilege to protect his confidential sources. Likewise, in Von

Bulow, supra, 811 F.2d at 138, the court considered whether an

author could use the journalist's privilege to shield certain

investigative reports from discovery. Both of these cases

addressed the question of who qualifies to assert a journalist's

privilege; neither involved a dispute as to the standard of

proof in a defamation claim against a non-media defendant.

Here, there is no claim of newsperson's privilege.

Hornblum responded to plaintiff's discovery requests by

providing the names of his informants and producing the

Trump, Madden and Von Bulow documents that he used as sources.

are irrelevant to the issues here.

The issue of the application of the actual malice standard

to media and non-media defendants has been addressed in our

courts. In Dairy Stores, Inc. v. Sentinel Publishing Company,

Inc., 104 N.J. 125, 152-53 (1986), the New Jersey Supreme Court


held that the actual-malice test applies to both non-media as

well as media defendants. The Court noted that the United

States Supreme Court, a majority of the federal courts and

various state courts have similarly concluded that the actual-

malice standard applies both to newspapers and private citizens

alike. Id. at 152.

While Dairy Stores was limited by the Court's recent

decision in Senna v. Florimont, supra, which characterized the

holding in Dairy Stores as extending the actual-malice standard

to defendants who were "so closely related to news gathering

that they should be treated like media defendants[,]" the

Court's reference to Dairy Stores arose in the context of a

general discussion of cases that have applied the actual-malice

standard to investigative news stories. 196 N.J. at 485, 486-

487. The Court did not address Dairy Store's more general

conclusion that the actual-malice standard can apply to non-

media defendants. Moreover, the Court clearly stated, without

qualification, that "[t]he actual-malice standard will apply

when the alleged defamatory statement concerns a public figure

or a public official or involves a matter of public concern."

Id. at 496 (emphasis added). We deem Hornblum to fall within

The the spectrum of those protected by Dairy Stores.

investigative function an author performs is not substantively

different from an investigative journalist. The dispositive

element is not the form of the investigative process. In an era

marked by a diminution of the classic newsmedia and the print

investigative journalist and the proliferation of investigative

reporting in media such as cable television, documentary

journalism - both televisions and movies - internet reporting

and blogging, the need for protection remains the same. Whether

Hornblum was writing a book, news article, a screenplay or a

blog, the substance of his body of work remains the same.

As the Senna Court recognized, New Jersey courts have

routinely applied the actual-malice standard to non-media

defendants when the controversy involved either a public figure

or a matter of public concern. See, e.g., DeAngelis v. Hill,


180 N.J. 1, 8-15 (2004) (applying the actual-malice standard to

a "newsletter" written and distributed by a private citizen);

Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 163-65 (1999) (applying

the actual-malice standard applied to political campaign

materials published by private advocacy groups). Here,

plaintiff is a limited-purpose public figure, and his criminal

involvement is a matter of public concern. We conclude that

authors, such as Hornblum, are protected by the actual-malice

standard, especially when applied to limited-purpose public

figures. Judge Fernandez-Vina did not err by applying that

actual-malice standard.

Plaintiff further claims that in granting defendants'

motion, the court misapplied the summary judgment standard. His

argument focuses primarily on the proper analysis for

determining whether a statement is defamatory as a matter of

law. He also contends that summary judgment is disfavored in a

defamation action because inquiry into a defendant's state of

mind presents a question of fact that is more appropriate for

the jury than for the court.

Neither party challenges the assumption that "statements

alleging that the subject committed a crime are defamatory per

se." DeVries v. McNeil Consumer Prods., 250 N.J. Super. 159,

166 (App. Div. 1991). For purposes of summary judgment, the

statements relating plaintiff's criminal conduct fall within

this rule. However, plaintiff's argument requires us to address

the application of the actual-malice standard.

We briefly review the relevant case law. False statements

about a public figure are not actionable unless published with

actual malice. Lynch, supra, 161 N.J. at 165. In order to meet

the actual-malice standard, "a public figure must prove with

convincing clarity that the defamatory statements were published

by the defendant with knowledge of their falsity or reckless

disregard of whether they were true or false." Lawrence v.

Bauer Publ'g & Printing Ltd., 89 N.J. 451, 466 (citing New York

Times Co. v. Sullivan, supra, 376 U.S. at 279-80, 84 S. Ct. at 725-26, 11 L. Ed. 2d at 706), cert. denied, 459 U.S. 999, 103 S.

Ct. 358, 74 L. Ed. 2d 395 (1982). In this context, "reckless

disregard" refers to "the publishing of defamatory statements

with a 'high degree of awareness of their probable falsity.'"

Ibid. (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 215, 13 L. Ed. 2d 125, 133 (1964)). In fact, "the

recklessness in publishing material of obviously doubtful

veracity must approach the level of publishing a 'knowing,

calculated falsehood.'" Ibid. (quoting Ryan v. Brooks, 634 F.2d 726, 733 (4th Cir. 1980)). "Negligent publishing does not

satisfy the actual-malice test." Lynch, supra, 161 N.J. at 165.

The propriety of resolving an actual-malice defamation

action through summary judgment is subject to two important, yet

competing, considerations. First, courts have recognized that

the perpetuation of meritless actions, with their attendant

costs, chills the exercise of free speech about public affairs.

Maressa v. N.J. Monthly, 89 N.J. 176, 196, cert. denied, 459 U.S. 907, 103 S. Ct. 211, 74 L. Ed. 2d 169 (1982). "To avoid

this, trial courts should not hesitate to use summary judgment

procedures where appropriate to bring such actions to a speedy

end." Ibid.; see also Dairy Stores, supra, 104 N.J. at 157

(noting that "summary judgment practice is particularly well-

suited for the determination of libel actions, the fear of which

can inhibit comment on matters of public concern"). On the

other hand, the actual-malice standard entails a subjective

analysis of the defendant's state of mind. DeAngelis, supra,


180 N.J. at 13. Courts have cautioned that the issue of a

defendant's state of mind in a defamation action "'does not

readily lend itself to summary disposition.'" Maressa, supra,


89 N.J. at 197 n.10 (quoting Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 99 S. Ct. 2675, 2680 n.9, 61 L. Ed. 2d 411, 422

n.9 (1979)). On balance, then, "[c]ourts should carefully

examine the circumstances surrounding publication of defamatory

allegations of fact to determine whether the issue of actual

malice should go to the jury." Ibid.

"To determine whether a genuine issue of material fact

exists regarding actual malice, a court must consider whether

the plaintiff has produced the 'quantum and quality of proof'

necessary under the New York Times v. Sullivan standard."

Costello v. Ocean County Observor, 136 N.J. 594, 614 (1994)

(quoting Schiavone Constr. Co. v. Time, Inc., 847 F.2d 1069,

1089 (3d Cir. 1988)). "When a case concerns a public official

or public figure, the court should grant summary judgment


dismissing the complaint if a reasonable jury could not find

that the plaintiff had established actual malice by clear and

Lynch, supra, 161 N.J. at 169. "Although convincing evidence."

courts construe the evidence in the light most favorable to the

non-moving party in a summary judgment motion, the 'clear and

convincing' standard in defamation action[s] adds an additional

weight to the plaintiffs' usual 'preponderance of the evidence'

burden." Costello, supra, 136 N.J. at 615. "Plaintiffs . . .

must produce substantial evidence to survive a motion for

summary judgment." Ibid.

Here, the judge applied the appropriate standard. However,

that does not end the inquiry, as the proofs presented by

plaintiff in response to the motion require consideration of the

application of such proofs to the standard on a motion for

summary judgment.

Plaintiff argues that he presented a clear and convincing

case of defendants' actual malice. He misconstrues the burden

of proof, however, when he asserts that Hornblum failed to

provide a defense or otherwise substantiate the statements made

in Confessions. He contends that because defendants could not

prove that the sources Hornblum relied upon were reliable and

accurate, plaintiff should prevail as a matter of law.

In support of his argument, plaintiff asserts several

examples of Hornblum's alleged untruthfulness and immorality.

These allegations include the following: Hornblum lied when he

stated he first met plaintiff in April or May 2001, because a

"mountain of evidence" shows that the two met in 1998; Hornblum

lied about when he first became aware that plaintiff had his

robbery conviction expunged, had his drug conviction reversed

and had earned several academic degrees; Hornblum lied when he

said he was a meticulous researcher, and that no one helped him

with his research; Hornblum "besmirched" his own character by

admitting to having had sexual relations with several female

students; Hornblum lied at deposition when he insisted that

plaintiff had been arrested for burglary in 1959, 1964 and 1966,

despite plaintiff's proof that the 1959 arrest was for attempted

burglary, and that plaintiff was in prison in 1964 and 1966;

Hornblum lied in his responses to interrogatories by claiming to

have met with three individuals regularly in early 2006 to

discuss plaintiff's allegations; Hornblum lied about meeting

Philadelphia District Attorney Lynne Abraham in a Chinese

restaurant in 2006; Hornblum demonstrated that he was "never

short on gall" by suing the Press for legal fees incurred in the

present litigation despite the fact that he did not warn the

Press about plaintiff's threatened lawsuit; Hornblum could not

prove the veracity of an incident reported in the book

concerning the suicide of an individual involved in Louis

Kripplebauer's scheme to ship cocaine from Florida to

Pennsylvania; Hornblum failed to produce documents to support

his claim that plaintiff was a regular at the Shamrock Bar in

the late 1950s; and Hornblum failed to support his claim that

plaintiff was a K&A Gang "crew chief" with any evidence except

"false and defamatory" newspaper articles and reports by the

Pennsylvania Crime Commission.

The trial judge correctly concluded that plaintiff's

allegations against Hornblum involve "corollary issues" that

cannot establish actual malice. Even if plaintiff's allegations

are true, none "prove[s] with convincing clarity" that Hornblum

published his statements about plaintiff "with knowledge of

their falsity or reckless disregard of whether they were true or

Lawrence, supra, 89 N.J. at 466. false."

Because plaintiff had the burden of proof, Hornblum was not

required to produce documentation to definitively prove the

veracity of his informants or the accuracy of newspaper articles

and official state reports. Hornblum's failure to produce such

materials cannot be construed to prove that he knew this

information to be false. Moreover, the anecdote concerning


Kripplebauer did not involve plaintiff and is irrelevant to

plaintiff's claim of defamation.

Some of the allegations involve incidents that occurred

after Confessions was written. Even if Hornblum's statements

concerning his 2006 meetings with informants and his chance

encounter with Abraham were intentional lies, they have no

connection with the information contained in his book.

Likewise, his failure to warn his publisher of plaintiff's

threats is unrelated to Hornblum's knowledge of the falsity of

his statements. With regard to the dates of plaintiff's

burglary convictions, Hornblum's claim that plaintiff was

arrested in 1959, 1964 and 1966, was made only in response to

interrogatories, not in his book. Even if Hornblum was wrong as

to these dates2, such a mistake does not amount to defamation.

Likewise, Hornblum's sexual relationships with students and

younger women are irrelevant to his knowledge concerning the

truthfulness of the material in his book as is his subjective

opinion of his own research skills. Even if he lied about

whether he received assistance with his research, such a lie

does not establish knowledge of the research's falsity.

Finally, Hornblum's "lies" about when he first met

plaintiff and when he first learned of certain personal

information about plaintiff are also irrelevant. The fact that

Hornblum may be mistaken about the date of his meeting with

plaintiff cannot be construed to mean that the information

reported in his book is knowingly false. Likewise, the fact

that Hornblum denied knowing of changes in plaintiff's criminal

record and educational status does not implicate the integrity

of his research. Hornblum was under no obligation to include

favorable information concerning plaintiff in his book.

Moreover, Hornblum's explanation that he knew of plaintiff's

claims about his improved circumstances but did not give them

any credibility is plausible.

At best, plaintiff's allegations concerning Hornblum show

that at times Hornblum was confused as to dates, and that he was

not always forthcoming in matters unrelated to the facts set

forth in his book. Such a showing falls far short of the clear

and convincing evidence needed to establish actual malice.

Although plaintiff claims that proof of a defendant's

dishonesty can be considered by a jury in a defamation case, he

presents little support for that argument. Plaintiff cites

Newton v. Nat'l Broadcasting Co., 930 F.2d 662, 671 (9th Cir.

1990), cert. denied, 502 U.S. 866, 112 S. Ct. 192, 116 L. Ed. 2d

152 (1991), for the proposition that "constitutional malice may

be predicated on the fact-finder's negative assessment of the

speaker's credibility at trial," but the case actually stands

for the opposite. In the course of reviewing a jury award in a

defamation action, the Newton court stated:

[A] determination of actual malice cannot be predicated on the factfinder's negative assessment of the speaker's credibility at trial. Although discredited testimony "does not rebut any inference of actual malice that the record supports, . . . it is equally clear that it does not constitute clear and convincing evidence of actual malice."

[Ibid. (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512, 104 S. Ct. 1949, 1966, 80 L. Ed. 2d 502, 524 (1984)).]

Under the rule set forth in Newton, even if a jury were to

believe plaintiff's allegations and find that Hornblum is not

credible, such a conclusion would not support a finding of

actual malice.

Plaintiff's reliance on Tucker v. Fischbein, 237 F.3d 275

(3d Cir.), cert. denied, 534 U.S. 815, 122 S. Ct. 42, 151 L. Ed.

2d 15 (2001), is likewise unavailing. In Tucker, the defendant

told a reporter that the plaintiff had filed a lawsuit asserting

damages for injury to her sex life. Id. at 284. The court

found no actual malice in this first statement, because the

plaintiff had filed a claim for loss of consortium, and loss of

consortium may concern damage to sexual relations. Ibid.

However, after the defendant received an amended complaint from

the plaintiff, which asserted that his first statement was

false, he nevertheless proceeded to make a second statement to

the press, again claiming that the plaintiff was attempting to

recover for damage to her sexual relationship. Ibid. The court

found that this second statement could constitute clear and

convincing evidence of actual malice. Id. at 284-85.

Tucker is distinguishable. Here, defendant threatened

Hornblum with a lawsuit but only in the most general terms; he

did not identify the information that he believed to be false.

Hornblum was not served with plaintiff's complaint specifying

the allegedly defamatory statements until after the book was

published. At that point, even if the complaint did imbue

Hornblum with knowledge of the falsity of the statements, it did

not change the fact he originally wrote the book without that

knowledge. Moreover, most of plaintiff's assertions of truth

were based on his own, unsubstantiated claims. As such, they

lacked the objective reliability of Tucker's complaint. In

other words, whether Tucker sought recovery for damage to her

sex life was ascertainable from the plain language of the

amended complaint. Whether the facts contained in Confessions

were false was not obvious from the face of plaintiff's

certifications.

We reject plaintiff's claim that his assertions against

Hornblum present clear and convincing proof of actual malice.

The motion judge here properly considered plaintiff's failure to

make a prima facie showing of actual malice in rendering its

decision. The judge also reviewed evidence submitted by

defendants, which demonstrated that Hornblum had no reason to

believe that his information concerning plaintiff was false.

With regard to plaintiff's alleged involvement in the

attempted murder of Robert Poulson, defendants produced notes of

Hornblum's interviews of Herbert Rhodes, a Philadelphia police

officer who investigated the Poulson matter. According to those

notes and an audio tape of an October 20, 2001 interview, Rhodes

stated that Poulson told him at the hospital that plaintiff was

the person who shot and stabbed him. Newspaper articles

published at the time of the attack stated that police had found

blood stains on the rear seat of plaintiff's car. Defendants

concede that plaintiff was never actually charged with the

attempted murder of Poulson but was only held as a material

witness. Nevertheless, they claim that Hornblum's statement,

that the police "couldn't make the charges stick and released

him[,]" was substantially true, even if carelessly presented.

This claim is supported by a newspaper article stating that

plaintiff's bail was returned to him "for failure of prosecution

to prove Berkery's connection with attack."

Concerning plaintiff's alleged arrest for the murder of

Vincent Blaney, defendants assert that this fact is

unquestionably true. Their assertion is well supported by a

newspaper article from October 19, 1961, which described a

"mystery witness" who implicated plaintiff in Blaney's murder.

The article also stated that plaintiff surrendered to police

investigators.

Defendants deny that Confessions names plaintiff as the

most likely candidate for murderer of Richard Blaney. This

denial is well-founded, since the passage from the book that is

cited by plaintiff merely states that the police interrogated

several dozen suspects, but the most likely candidates had

Confessions did not name plaintiff as one of "airtight" alibis.

the suspects.

With regard to plaintiff's involvement with the Pottsville

burglary, plaintiff himself admits that he was convicted of that

crime. Further, Confessions specifically states that plaintiff

had the conviction overturned, and that he was not re-tried.

The book's assertion that the charges were dropped because the

legal establishment "had had enough" is clearly an opinion of

the author on a matter of public interest and thus not subject

to a defamation claim. See Kotlikoff v. Comty. News, 89 N.J. 62, 70 (1982) (distinguishing between defamatory statements of

fact and protected statements of opinion); Lutz v. Royal Ins.

Co. of Am., 245 N.J. Super. 480, 494 (App. Div. 1991) (noting

that mere expression of opinion as to a matter of public concern

cannot be defamatory).

The evidence submitted by defendants concerning plaintiff's

involvement with the K&A Gang is extensive. He is named in A

Decade of Organized Crime, 1980 Report Pennsylvania Crime

Commission (1980 Report) as a member of the original gang and as

the gang's "leader." In fact, the report even includes a

photograph of plaintiff under the heading "The K&A Gang." In

addition, numerous newspaper articles quote law enforcement

officials who refer to plaintiff's involvement in the K&A Gang.

We need not explore in detail the numerous publications

depicting plaintiff's involvement in criminal activity. Suffice

See e.g. George Anastasia, Blood it to say, they are extensive.

and Honor: Inside the Scarfo Mob The Mafia's Most Violent Family

111-12 (1991); Ron Avery, City of Brotherly Mayhem Philadelphia

Crimes & Criminals 105 (1997); Sean Patrick Griffin, Black

Brothers, Inc. The Violent Rise and Fall of Philadelphia's Black

Mafia 289 (2005).

As to the allegedly defamatory material concerning

plaintiff's conviction for methamphetamine trafficking, all of

plaintiff's claims stem from the same paragraph of Confessions:

John Berkery, considered one of "Philadelphia's most clever and fascinating criminals" by police and crime reporters[,] was another of the many K&A burglars who gravitated to drugs. Berkery was convicted of "distributing 24 pounds of methamphetamine and possession of more than 200 gallons of P-2-P, the contraband chemical used to make the drug in 1987." This came after he had been a federal fugitive for over five years, much of which he may have spent in Ireland. Commenting on Berkery at his sentencing, federal prosecutor Louis R. Pichini said, "The defendant's unlawful activities exhibit a cunning[,] cleverness and sophistication that has little equal in the Philadelphia criminal community." Now back on the street, Berkery is studying law.

Plaintiff claims that this passage is defamatory because

Hornblum fails to mention that plaintiff had his federal

conviction reversed. However, Hornblum's including more details

about the reversal of plaintiff's conviction would hardly have

been exculpatory, since plaintiff subsequently pled guilty to

conspiracy to distribute and possession with intent to

distribute P-2-P and possession and distribution of

methamphetamine P-2-P. Plaintiff also objects to the quotation

from Pichini, although the record shows that this is exactly

what the federal prosecutor said in his sentencing memorandum.

Earlier in the same memorandum, Pichini stated that plaintiff

was "particularly dangerous for he combines intelligence and

street-smarts with a reputation for 'muscle,' and violence that

is disguised by an extroverted, disarming personality."

Hornblum's quotation from this public document is protected by

the fair-report privilege. See Costello, supra, 136 N.J. at 607-09 (stating that the purpose of the fair-report privilege is

to assure that people who report on official releases, including

documents from judicial proceedings, will not be held

responsible for the content of the releases). Finally, the

comment that plaintiff was "back on the street" - meaning that

he was out of prison - simply stated a true fact.

The materials submitted by defendants demonstrate that

Hornblum relied on substantial, credible sources in gathering

information. To the extent that any of the statements about

plaintiff published in Confessions were false, nothing in

Hornblum's sources would have caused him to suspect as much.

Plaintiff failed to present clear and convincing evidence

from which a jury could have found that Hornblum acted with

actual malice in publishing Confessions. The grant of summary

judgment was proper.

* * *

See: http://lawlibrary.rutgers.edu/courts/appellate/a5105-07.opn.html

Affirmed