The New Jersey Supreme Court ruled Wednesday that a defamation suit over online accusations of child sexual abuse could still proceed, even though the plaintiff could not show he was harmed.
The decision upheld a 2010 appeals court ruling that New Jersey First Amendment attorneys hoped would lead to a change in the law by the state's Supreme Court.
Although the attorneys called for the end of the legal doctrine that permits defamation suits where no harm can be shown, known as presumed damages, the court only partially agreed with them. Instead, it limited the scope of presumed damages, but said the doctrine would continue in New Jersey.
In fact, the court said this policy may be even more appropriate in the age of the Internet. As in the recent, similar Crystal Cox blogger case in Oregon, the court appeared to treat online speech as a special concern.
"[F]or a private person defamed through the modern means of the Internet, proof of…damages respecting loss of reputation can be difficult if not well-nigh insurmountable," the court said.
In the case, the plaintiff – referred to as D.A. in court records – brought a defamation complaint against his nephew, W.J.A., in response to W.J.A.'s website accusations that his uncle sexually abused him as a child. W.J.A. lost a 1998 suit against his uncle for child molestation and he was also hit with a $50,000 defamation judgment.
W.J.A. then moved to Florida and continued to post the same accusations against his uncle online while denying the validity of the judgment against him, which W.J.A. refused to pay.
The court found W.J.A's statements were less protected because they found they concerned a private subject. New Jersey has ruled that presumed damages are not available for speech about public figures or matters of public concern. But now the court has said that presumed damages will still be available for lawsuits that involve private speech.
Speech about private matters is less protected for another reason, too. In New Jersey, a plaintiff does not have to show actual malice to win a suit over statements about a private subject – only negligence. By contrast, in suits over public figures or matters of public concern, the actual malice standard most be proven.
Because of this lower standard of proof in private speech cases, attorney Thomas Cafferty of the New Jersey Press Association argued in his friend-of-the-court brief that presumed damages are unnecessary and should be ended in New Jersey.
Instead, the court said that presumed damages are still necessary to protect reputation, which is given more weight in private matters, but Cafferty disagrees.
"[New Jersey has] already addressed the greater interest in protecting reputation by lowering the standard of fault. Why do we provide a windfall in damages that may be unrelated to the injury?" he said.
The decision did come with a victory for First Amendment attorneys, though. The court limited the scope of presumed damages; it said they would no longer be available for the damages that permitted the largest monetary awards – compensatory damages.
When asked, both Cafferty and Bruce Rosen, one of the authors of the New Jersey chapter of the American Civil Liberties Union's friend-of-the-court brief, agreed this would take much of the teeth out of presumed damages lawsuits. Rosen noted that under the new law, presumed damage awards will be both smaller and harder to establish, which will discourage litigation.
"This will make it harder for plaintiffs to find lawyers," Rosen said.
Related Reporters Committee resources: