By:
Daniel S. Strick
Many do not know who John C.
Berkery, Sr. is, but the New Jersey courts held he is a public figure in the
defamation lawsuit he filed against the Philadelphia Inquirer. Berkery v.
Kinney, 936 A.2d 1010 (App. Div. 2007). As such the heightened standard
applied and he had to show by clear and convincing evidence the defendants acted
with actual malice when making the alleged defamatory statements.
Plaintiff attempted to stop the book
Confessions of a Second Story Man: Junior Kripplebauer and the K & A Gang by
filing a defamation action against the book’s author. The book was about a
criminal gang operating in the 1950s and early 1960s and named plaintiff as a
member of the gang who participated in a number of crimes. The Philadelphia
Inquirer published two articles written by Monica Yant Kinney addressing
plaintiff’s attempts to stop the book from being published and plaintiff’s
defamation suit against the book’s author.
The newspaper articles accused plaintiff of
being “a thug, thief, burglar, mob associate, lawbreaker, and murderer.”
Plaintiff asserted these statements were false and libelous per se. 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 – “minor scrapes with the law” as characterized by
plaintiff. Mr. Berkery maintained he was not a public figure because he now
lives a private lifestyle. He took issue with the book and newspaper articles
because they neglected to mention his completion of college, his master’s degree
in English and Publishing and his paralegal degree.
As a general rule, a statement is defamatory if
it is false, communicated to a third person and tends to lower the subject’s
reputation in the estimation of the community or to deter third persons from
associating with him. A public official may only recover for defamatory
statements relating to official conduct if actual malice can be proven. Actual
malice is established by proving the defendant(s) disseminated the information
with knowledge it was false or with reckless disregard for whether it was false
or not by clear and convincing evidence.
There are two different types of public figures
– all-purpose and limited-purpose. An all-purpose public figure has achieved
“such pervasive fame or notoriety that he becomes a public figure for all
purposes and in all contexts.” A limited-purpose public figure “voluntarily
injects himself or is drawn into a particular public controversy.”
Factors used to determine whether
someone is a limited-purpose public figure are (1) whether the alleged
defamation involves a public controversy and (2) the nature and extent of
plaintiff’s involvement in the controversy. A public controversy is a real
dispute, the outcome of which affects the general public or some segment of it.
An individual’s involvement in publicized criminal activities and associations
with organized crime groups qualifies as a public controversy or issue giving
rise to a limited-purpose public figure status. However, courts have refused to
hold any person who engages in criminal conduct becomes a public figure
automatically.
Based on plaintiff’s admissions
regarding his prior “scrapes with the law” and the public records regarding his
prior criminal involvement, the court found plaintiff qualified as a
limited-purpose public figure. Despite the passage of time and plaintiff’s
present private lifestyle, once a person becomes a public figure in connection
with a particular controversy, the person remains a public figure for purposes
of later commentary or treatment of the controversy thereafter. To succeed on
his claim, plaintiff therefore had to prove actual malice with respect to the
alleged defamatory statements by clear and convincing evidence
In affirming the trial court’s
granting of defendants’ motions for summary judgment the court held plaintiff’s
allegations the newspaper articles were intended to pressure him into dropping
the defamation lawsuit against the book’s publisher – a personal friend of
Kinney – were not supported by clear and convincing evidence.
