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TRANSCRIPT
OF
TRIAL DECISION
Place:
Date:
BEFORE:
THE HONORABLE PATRICK J. ARRE, J.S.C.
TRANSCRIPT ORDERED BY:
KERRY B. FLOWERS, ESQ. (Flowers & OBrien, L.L.C.)
APPEARANCES:
JONATHAN Z. COHEN, ESQ. (I. Mark Cohen Law Group)
Attorney for Plaintiff Lane Bajardi
STEPHEN R. KATZMAN, ESQ. (Methfessel & Werbel)
Attorney for Defendant Nancy Pincus
ALEXANDER W. BOOTH, ESQ. (Brownstein, Booth & Associates,
P.C.) Attorney for Defendant Roman Brice
KERRY B. FLOWERS, ESQ. (Flowers & OBrien, L.L.C.)
Attorney for Defendant Mark Heyer
2
I N D E X
PAGE
Decision by The Court
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COURT CLERK:
record.
THE COURT: Okay. Thank you.
All right. This is the continuation of
Bajardi versus Pincus, et al., HUD 3723-12.
Appearances, please.
MR. COHEN: Your Honor, Jonathan Cohen for
plaintiff Lane Bajardi.
THE COURT: Good morning.
MR. COHEN: Good morning.
MR. KATZMAN: Good morning, Your Honor.
Stephen Katzman from Methfessel & Werbel representing
defendant Nancy Pincus.
THE COURT: Good morning.
MR. KATZMAN: Good morning.
MR. BOOTH: Good morning, Judge. Alex Booth
for Roman Brice.
MR. FLOWERS: Kerry Flowers for defendant
Mark Heyer.
THE COURT: Good morning.
Okay, Counsel, I received the briefs,
including Mr. Cohens brief this morning. Anything
further?
UNKNOWN MALE SPEAKER: No, Your Honor.
MR. COHEN: No, Your Honor.
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10
reasonable person of ordinary intelligence. McLaughlin
v. Rosanio, Bailets & Talamo, 331 N.J. Super. 303.
Mere insults and rhetorical hyperbole, while
they may be offensive, are not defamatory. A
statements verifiability refers to whether it can be
proved true or false but, obviously, does not apply to
insults absent a well-settled meaning and to statements
of opinion. Wilson v. Grant, 136 N.J. Super. 128.
The Courts analysis must focus upon the
fair and natural meaning that will be given to his
statements by reasonable persons of ordinary
intelligence. DeAngelis, 180 N.J. at 14, quoting
Ward, 136 N.J. at 529 and Romaine v. Kallinger, 109
N.J. 282).
In that regard, while the use of epithets,
insults, name-calling, profanity and hyperbole may be
hurtful to the listener and are to be discouraged, such
comments are not actionable. In 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 trier of fact.
Romaine v. Kallinger, as cited above.
The fair comment privilege also provides a
defense to a libel or slander action when the words in
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order to prevail on his claim for defamation if he is a
limited public figure or the alleged defamation
involves a public controversy. Barasch v. Soho
Weekly, 208 N.J. Super. 163 (App. Div. 1986).
It is well established that the Court,
rather than the jury, must make this determination.
Public figures who have thrust themselves to the
forefront of a particular public controversy usually
enjoy greater access to the channels of effective
communication and, thus, can more justly be burdened
with the actual malice standard. Sisler v. Gannett,
104 N.J. at 264 and Gertz v. Robert Welch, at 418 U.S.
323.
Limited public figures are those who have
thrust themselves into the vortex of a public issue or
have engaged the publics attention in an attempt to
influence its outcome. When it considered the public
controversy prong, the Court must consider whether the
alleged defamation involves a public controversy and
the nature and extent the plaintiffs involvement in
that controversy. Berkery v. Kinney, 397 N.J. Super.
222.
A public controversy is defined as a real
dispute, the outcome of which affects the general
public or some segment of it and the content, form and
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political factionalism is one of public concern and is,
therefore, offered the highest possible constitutional
protection. W.J.A. v. D.A., 210 N.J. 229 (2012). G.D.
v. Kenny, 205 N.J. 275 (2011) and Rocci v. Ecole
Secondaire MacDonald-Cartier, 165 N.J. at 149 (2000).
It is a real dispute in that the outcome of
every election and political adversarial process has
the potential to lead to some change in the City of
Hoboken and, thus, ongoing battles between these
factions has a profound effect on the community.
Citing Berkery at page 227.
New Jersey has a particularly high regard
for the protection of speech, as our state Supreme
Court has found that the New Jersey Constitution
offered protections more sweeping in scope than the
language of the First Amendment, has supported broader
free speech rights than its federal counterpart.
Sisler v. Gannett Company, 104 N.J. 256.
Indeed, our Supreme Court and our
legislature have stressed the vigor with which New
Jersey fosters and nurtures speech on matters of
political concern. Political speech lies at the core
of our constitutional free protections. Mazdabrook
Commons Homeowners v. Khan, 210 N.J. 482.
It is with this high regard for the value of
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free speech and public discourse that Bajardi is found
to be a limited public figure and the issue of
discussions to be a matter of public concern.
When a public figure is the plaintiff in a
defamation case, the plaintiff must establish actual
malice by clear and convincing evidence. New York
Times v. Sullivan, 376 U.S. 254 (1964) and Curtis
Publishing Co. v. Butts, 388 U.S. 130 (1967), DeAngelis
v. Hill, 180 N.J. 1 (2004).
Reinforcing the constraints of the actual
malice test is a necessity that actual malice be found
by the Court as a matter of law. Harte-Hanks
Communications v. Connaughton, 491 U.S. 657.
Supporting the actual malice standard is a
profound national commitment to the principle that
debate on public issues should be uninhibited, robust
and wide-open, and that it may well include vehement,
caustic and sometimes unpleasantly sharp attack on
government or public officials. New York Times v.
Sullivan, 276 U.S. at 270.
Defamation law principles must achieve a
proper balance between protecting reputation and
protecting free speech. Rocci v. Ecole Secondaire,
165 N.J. 149. Ward v. Zelikovsky, 136 N.J. 516.
In that regard, speech on matters of public
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concern is at the heart of First Amendment protection.
Rocci at page 149.
Our courts have noted that readers recognize
statements by one side in the political contest are
often exaggerated, emotional and even misleading.
Milkovich v. Lorain Journal, 497 U.S. 1 (1990).
To satisfy the actual malice standard, a
plaintiff must establish by clear and convincing
evidence that the defendant published the statement
with knowledge that it was false or with reckless
disregard of whether it was false. DeAngelis, 180
N.J. at 16 to 17.
In order to demonstrate reckless disregard,
the plaintiff must show that the statements were
published with a high degree of awareness of their
probable falsity or with serious doubt as to the truth
of publication. This standard is a subjective one.
Negligent publishing does not satisfy the actual malice
test. Lynch, 161 N.J. at 165.
Even a publishers hostility or ill will is
not dispositive of malice. DeAngelis at 16.
Spite, hostility, hatred or the deliberate
intent to harm demonstrate possible motives for making
a statement but do not demonstrate publication for a
reckless disregard for truth. Citing Lynch at 166.
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negative impact on plaintiffs job has occurred or ever
existed. In fact, it is undisputed that plaintiff
continues to work for CBS.
There are no facts from which to support a
finding that Ms. Pincus acted with actual malice
authoring and publishing the statements in paragraph 31
and 35. Plaintiff argues a finding of actual malice is
supported by the fact that Ms. Pincus was aware of
contrary opinions on the subject and did not contact
Mr. Bajardi or anyone from Beth Masons campaign to
confirm or deny these allegations before including them
in her blog. At the heart of the argument is the
suggestion that Ms. Pincus should have investigated
more sources before publication. However, the mere
failure to investigate all sources does not prove
actual malice. See Lynch at page 172 citing Costello.
A publishers reliance on previously
published material is not evidence of actual malice,
especially when there is no reason to doubt the
accuracy of the sources. Ms. Pincus testified that she
would not reveal her sources for this information, but
she had reason to believe that what she was told was
true, that Mr. Bajardi was being paid for political
services.
Plaintiff also argues that through other blog
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posts and articles not of issue, he has established Ms.
Pincus hostility and hatred for Mr. Bajardi and
demonstrated that her motive to post defamatory
statements were this hatred. Plaintiff has presented
previous blog posts and political cartoons that were
dismissed on summary judgment, because they were
considered unactionable, satire, political discourse,
fair comment and/or mere insults.
However, insofar as these cartoons may
establish Ms. Pincus dislike for Mr. Bajardi, they
will be insufficient to establish that she published
the statements in paragraph 31 and 35 with knowledge of
falsity or reckless disregard of truth. A publishers
hostility or ill will is not a dispositive factor of
malice. See DeAngelis at page 16 to 17.
Spite, hostility, hatred may demonstrate a
possible motive for making a statement but do not
demonstrate publication with reckless disregard for
truth. The plaintiff must establish by clear and
convincing evidence that Pincus knew his - her
statements were false or that she was reckless in
disregarding their falsity.
Complaint paragraph 56 alleges that Ms.
Pincus article of January 25, 2012 included defamatory
statements regarding the alleged corruption of
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admitted to assisting Beth Mason, albeit as a volunteer
for some time. There is no evidence - there was also
evidence of stolen e-mails subject of the FBI
investigation which were present on Mr. Bajardis email account. Plaintiff asserts he was not questioned
by the FBI. Defendant argues that there was a
reasonable basis to believe these statements were true
and that, in part, that they may well be. Plaintiff
has failed to establish that these statements were
wholly false and has not provided clear and convincing
evidence that they were made with actual malice.
Paragraph 103 of the complaint involves
allegation involving a blog published on March 16th,
2012. The blog comments on Mr. Bajardis relationship
with Peter Cammarano, posing a comment directly from
Prosbus defending the Cammarano/Bajardi association.
Defendants blog goes on to question whether Bajardi is
Cammaranos pitchman in the corruption, and that
Bajardi and his wife are now associated with Al Arezzo.
The blog also included a time line of Cammaranos
corruption and when Bajardi publicly spoke in favor of
Cammarano and finally Cammaranos arrest. It also
identified Mr. Bajardi as an employee of 1010 WINS and
possibly violating the terms of his employment.
Again, at summary judgment, the Court found
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presume damages absent clear and convincing evidence of
actual malice. W.J.A. v. D.A., 210 N.J. 229 citing
Rocci and Senna v. Florimont, 196 N.J. 469.
In light of the foregoing reasons, it is
evident that reasonable minds could not differ that
plaintiffs evidence, even with all reasonable
inferences and without consideration to the weight,
worth, nature or extent of the evidence, is simply
insufficient to support a finding of actual malice or
reputational injury. And, therefore, the plaintiffs
complaint is dismissed. Thank you, counsel.
UNKNOWN MALE SPEAKER: Thank you, Your Honor.
UNKNOWN MALE SPEAKER: Thank you, Your Honor.
UNKNOWN MALE SPEAKER: Judge, do you want us
here when you bring the jury out or you want us to just
THE COURT: Im sorry. If you want a seat at
the table, I could indicate the case has been resolved.
UNKNOWN MALE SPEAKER: Okay.
THE COURT: Ill tell - and Ill thank them.
If you want to stay here when I thank the jury, thats
your - you know, we can do that.
UNKNOWN MALE SPEAKER: Whatever you THE COURT: Well, either you all stay or UNKNOWN MALE SPEAKER: Why dont we stay.
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you publicly for your service as jurors. The fact that
you did not get the case in no way diminishes your
service.
In the beginning of the case, I told you that
you would be the judges of the facts, and I am the
judge of the law. This case was dismissed because, as
a matter of law, the Court found that the plaintiff did
not meet his burden of proof that would enable him to
place the case in your hands for your consideration.
But, again, the fact that you show up, that
you take part in the selection process, and you came
here over a period of two weeks and listened to the
testimony and afforded the parties their rights under
our Constitution to a jury trial, which I believe is a
sacred right in this country is, nonetheless, you know,
noteworthy. And this case, as you know, was about
defamation and names, and at this point, I want to
indicate to you and call you or give you a title of
citizen, which I think is one of the highest and most
complimentary names you can be given. So, you should
hold your heads up, you know, high.
And to quote our president, you know, we may
do different jobs and wear different uniforms and hold
different views than the person beside us, but as
Americans, we all share the same proud title. We are
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citizens. And thats a word that doesnt just describe
our nationality or our legal status, it describes the
way were made. It describes what we believe. It
captures the enduring idea that this country only works
when we accept certain obligations like jury duty to
one another and to future generations and that our
rights are wrapped up in the rights of others and that
well into the third century as a nation, it remains our
task as citizens to protect and observe our rights.
So, again, I want to thank you on behalf of the parties
and the Court. Once again, if you need any
certificates, you can get them downstairs. So, thank
you.
UNIDENTIFIED MALE SPEAKER: Thank you very
much.
UNIDENTIFIED MALE SPEAKER: Thank you.
(Jury dismissed.)
THE COURT: Okay, Counsel, anything for the
record?
MR. COHEN: Nothing, Your Honor.
UNKNOWN MALE SPEAKER: Thank you.
THE COURT: Okay. Thank you.
UNKNOWN MALE SPEAKER: Thank you, Judge.
(Proceedings concluded.)
* * * * * * * *
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C E R T I F I C A T I O N
I, Lauren Leister, the assigned transcriber,
do hereby certify the foregoing transcript of
proceedings on electronic recording dated 2/10/15,
electronic recording time from 10:24:17 to 11:14:38, is
prepared in full compliance with the current Transcript
Format for Judicial Proceedings and is a true and
accurate compressed transcript of the proceedings as
recorded.
/S/ Lauren Leister
SIGNATURE
#651
AOC NUMBER