Court throws out defamation claim against FBW

First Amendment right to engage in public debate upheld; but one count “of last resort” remains

July 21, 2004 Yesterday, Judge Camille Kenny of New Jersey Superior Court dismissed the defamation count in a lawsuit brought by Stevens Institute of Technology against a nonprofit group, the Fund for a Better Waterfront (FBW), and its leaders. The Judge cited the First Amendment rights of the defendants to speak out on an issue of public concern. She also noted that the defendants consulted with geologists and other experts before making statements about the potential hazards posed when contractors hired by Stevens blasted and excavated some 35,000 tons of serpentine rock that contained naturally occuring asbestos at the campus in 2002.

“The Judge has delivered a fatal blow to Stevens’ lawsuit against a public advocacy organization. She upheld the constitutionally protected right to speak freely on a matter of public concern. This will put an end to Stevens attempt to silence and intimidate those who dare to criticize its development plans,” said attorney Renee Steinhagen, Executive Director of the New Jersey Appleseed Public Interest Law Center. Yesterday’s decision by Judge Kenny was in response to a motion for summary judgment filed by lawyers representing FBW. Stevens filed this suit in January 2003, and 18 months of contentious litigation has followed. The Judge remarked a number of times about the huge volume of paper generated from the depositions, certifications, briefs and other documents.

The Judge, however, allowed the final count of the complaint to remain, a pleading termed a prima facie tort. She told Charles Fisher, the attorney for Stevens, that she would provide him one last opportunity to make his case on this count. Steinhagen remarked however, “The prima facie tort did not contain any additional facts beyond those Stevens alleged in its claim of defamation. As a result, the Judge could have dismissed this count as well as a matter of law, putting an end to this frivolous lawsuit.”

Charles Fisher continued to argue that this case must go to trial and be heard by a jury. He continued to portray the defendants as “liars” who schemed to malign the college. The Judge, however, disagreed. At the June 30th and July 8th hearings, she dismissed seven of the 10 statements made by defendants, ruling that these statements were either true, a matter of opinion or not made with reckless disregard for the truth. Yesterday, she determined that the college failed to present any evidence that Stevens was damaged in any way by the three remaining statements, an additional requirement to meet the defamatory standard of the courts.

One statement, “no monitoring has taken place as (the excavation proceeds),” was on the FBW website for less than one day. When Ron Hine, the Executive Director of the Fund for a Better Waterfront called Stevens Vice President Roger Cole to inquire about the presence of asbestos and whether Stevens was monitoring the site, Cole replied, “No, I don’t think so. But let me get back to you.” Hine prepared a statement for the website based on this conversation. At the end of the day, Cole called back to tell Hine that the rock did contain asbestos and Stevens was conducting air monitoring. The following morning, Hine changed the article on the website, removing the “no monitoring” statement.

Another statement was a letter to the editor from Mr. Hine to the Hoboken Reporter in which he stated, “(Stevens) proceeded to dump the hazardous material in the Meadowlands illegally.” At the July 8 court appearance, Stevens attorney Charles Fisher represented to the court that the orders from the New Jersey Meadowlands Commission (NJMC) in May and April of 2002 to cease and desist the dumping because it did not constitute clean fill had been rescinded and Hine knew they had been rescinded. He also stated before the court that the excavated rock dumped in the Meadowlands was ultimately determined to be “clean fill.” Yesterday, defense attorneys submitted a certification dated June 19, 2004 prepared by the NJMC that stated, “The NJMC has not rescinded the orders issued on April 24, 2002 and May 3, 2002. . .” and “The determination that asbestos-containing fill material violates the clean fill provisions of N.J.A.C. 19:4-6.18(o) has not been rescinded, changed, or overruled.”

Nonetheless, the Judge declined to delve into these conflicting statements of facts. She noted that the letter was published in December 2002, more than six months after the operations ceased, thus concluding that there could be no causality between this statement and any additional dumping costs incurred by Stevens Institute by being forced to go to a landfill in Linden, New Jersey to dispose of the remaining excavated asbestos-containing rock.

In her ruling, Judge Kenny cited the New Jersey Supreme Court case of DeAngelis v. Hill decided just two months ago, in May 2004. In this decision, the state’s highest court reversed both the lower courts’ rulings for failure to dismiss a defamation case on summary judgment. The Courts have found that a plaintiff has the burden of proof and must show that a defendant acted with actual malice. To prove actual malice, plaintiffs must establish that statements were made with reckless disregard for the truth.

Lawyers defending FBW have described this lawsuit as a “SLAPP” suit. “SLAPP” is an acronym for Strategic Lawsuit against Public Participation. The Courts in New Jersey have shown considerable disdain for “SLAPP” suits, which are aimed at shutting down public dissent and free speech. In 1999, a New Jersey Appellate Court handed down a landmark decision in LoBiondo v. Schwartz. In a strongly worded opinion, the LoBiondo court dismissed the plaintiff developer’s defamation suit against community land-use advocates.