On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 83-1432).
Sloviter and Becker, Circuit Judges, and Fullam, District Judge*fn*
In this appeal from a grant of summary judgment dismissing a libel case, we are again required to address issues involving New Jersey's fair report privilege, recently canvassed in Schiavone Construction Co. v. Time, Inc., 735 F.2d 94 (3d Cir. 1984).
In Schiavone, we reversed a dismissal under Fed. R. Civ. P. 12(b)(6), because it could not properly be ruled as a matter of law that plaintiff would be unable to establish abuse of the fair report privilege on the part of the defendants. The present case was decided on cross-motions for summary judgment; coincidentally, by the same district judge whose decision was reviewed in Schiavone.
Plaintiff is a Bayonne, New Jersey, police official who claims to have been defamed by an article appearing in the March 7, 1983 edition of the "New York Daily News".
It appears that, over the course of several years, the FBI conducted a far-reaching investigation of organized crime activities in the New York-New Jersey area, particularly along the waterfront. In the course of that investigation, in May 1982, an FBI agent applied to a federal judicial officer in the Southern District of New York for a search warrant, and in support of the application, presented the court with a 165-page affidavit outlining the results of the investigation. Approximately 6-1/2 pages of the affidavit, under the heading "Police Corruption", discussed the allegedly improper relationships between persons associated with organized crime ("the DiGilio Group") and members of the Bayonne, New Jersey Police Department. The affidavit and related papers remained under seal until some time around October of 1982; upon expiration of the district court's impoundment order, the affidavit and related papers became matters of public record.
A reporter for the defendant newspaper first became award of the affidavit and its contents in early March 1983. The newspaper account claimed by plaintiff to be defamatory was based, in large part, upon the affidavit. The page 1 headline reads:
"Second of series, page 5"
At the top of page 5 of the newspaper appeared the four-column headline: "BEST COPS MONEY CAN BUY". Immediately beneath the headline, on the left, appeared a two-column photograph of plaintiff and another police official, both identified by name and title. To the right of this photograph, the two-column text of the newspaper article begins. In pertinent part, the text of the article reads as follows"
"FBI agents who investigated New York mob operations in New Jersey concluded that the city of Bayonne has the best police force money can buy. "The six-year probe focused on criminal activities of the DiGilio Group, a Bayonne-based mini-mob . . "Results of the investigation were described in a 165-page affidavit filed in federal court to support a request for search warrants authorizing FBI agents to seize evidence from mob members, their homes and offices "In the affidavit, FBI agents reported: 'The evidence developed during the electronic surveillance (of DiGilio and his crew) established that DiGilio is able to conduct his various criminal activities with a significantly diminished risk of detection because he and some of his associates have developed a corrupt relationship with certain police officials.' "The Daily News obtained a copy of the affidavit. Much of the information in it was obtained from electronic surveillance of gang members and from several inside 'sources', or informers, who were members of the DiGilio Group. "The FBI papers said two of these sources 'separately reported that Bayonne Public Safety Director James Sisk received bribe payments from DiGilio.' "The affidavit also mentioned Deputy Police Chief Thomas Lavin, Commander of the Bayonne Police Department's Detective Bureau, and Detective Peter Dugan."
Next appeared two paragraphs relating to the DiGilio Group, Sisk, and others. The only further references to plaintiff are these:
"In interviews with The News, the three Bayonne police officers and Conaghan denied the allegations and insisted they had never been involved in bribe-taking or other wrongdoing." A reference to an electronically recorded conversation in which a crime figure is reported to have stated that a Bayonne police officer who was attempting to gather evidence against the DiGilio Group was being punished by the Department to discourage such activity "because . . . Lavin and everyone in the Police Department were giving the officer the cold shoulder". "Interviewed by The News in Sisk's office at the Bayonne Municipal Building, Sisk and Lavin both denied accepting bribes or doing favors for DiGiliio. They said they had been investigating him and his associates since 1968.
"We brought DiGilio to the FBI's attention', Lavin said. "We were the first to investigate DiGilio. There's no way a relationship exists between him and us. . .'"
Plaintiff argues that the combined effect of the headlines and the photograph is an accusation that plaintiff was guilty of taking bribes; and that the text of the article in its entirety amounts to a statement that the FBI agents, in an official document, had accused plaintiff of taking bribes. In plaintiff's view, the FBI affidavit, fairly read, does not accuse him of taking bribes; and the only factual references to plaintiff in the affidavit are entirely consistent with the proper and legitimate performance of his duties as head of the Internal Affairs Division of the Police Department, charged with investigating complaints against or about police officers.
In an oral ruling from the bench, the district court granted defendant's Motion for Summary Judgment. Plaintiff appeals.
The substantive law to be applied is that of New Jersey. As in Schiavone, supra, the parties have assumed as much, and we see no reason to adopt a different approach. Moreover, on the controlling issues, we are aware of no significant difference between New Jersey law ...