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Catalanello v. Kramer – Court Recognizes Privilege for Fair Reporting

This post is off-topic, but it is important to bloggers and writers. My initial reaction to this decision was “Whew.”

This blog often reports on cases that have been filed. When a complaint is filed, I may write a blog post even though the allegations in the complaint have not been put to the test of proof. Obviously, allegations that have not been proven are not facts, but they could become established facts after a trial.

Catalanello sued Zachary Kramer, a law professor, who wrote and article and gave a speech in which he discussed allegations that were made against Catalanello in a sexual harassment lawsuit. The plaintiff in the underlying case alleged that Catalanello harassed him for being gay. Catalanello disputed the claims. The case was later dismissed with prejudice, possibly due to a settlement.

Kramer then read the complaint and wrote an article in which he argued for changes to the way in which courts treat sexual harassment claims. Catalanello then sued for defamation. Kramer moved to dismiss and his motion was granted. One of the grounds is the fair reporting privilege, a privilege that shields an author from defamation liability if the author give a full, fair and accurate report of the litigation. The court held that Kramer met that test because he made clear in his article that the allegations in the sexual harassment complaint had not been proven.

The court explains: ”

“And, as noted, at the very outset of the article, Kramer stated clearly that the Pacifico facts were drawn from the allegations of a complaint in an ongoing case, and were not facts found by a court or jury. Taken as a whole, Kramer’s account gives a substantially correct account of the allegations in the Pacifico Complaint, and does not give the reader the erroneous impression that these allegations are proven “facts.” Accordingly, Kramer’s article recapping Pacifico’s allegations is protected by the fair-report privilege. See id. at 530 (“[T]he fair-report privilege . . . cannot attach unless the report is full, fair, and accurate. Once that condition is met, the privilege becomes absolute and cannot be defeated.”). ”

The court also recognized first amendment protection for statements of opinion:

Fairly read, however, these statements constitute Kramer’s commentary on the

allegations contained in the Pacifico Complaint. As such, these statements are protected by the First Amendment. The challenged statements are preceded by qualifying language that makes clear that Kramer is offering his opinion as to the motivations underlying Catalanello’s alleged actions, and his opinion as to how Pacifico’s case fits into his theories as to gender and sexuality discrimination law. Significantly, in the article, Kramer states explicitly that he “argues that Catalanello viewed Pacifico’s vegetarianism as a proxy for effeminacy,” Article at 23 (emphasis added); and in the lecture, he states that he “think[s] it’s gender stereotyping,” Lecture Video (emphasis added). Further, Kramer’s statements as to Catalanello’s statement of mind are not, by their nature, “specific factual assertions that could be proven true or false.” DeAngelis, 180 N.J. at 14. Read in context, these statements are properly viewed as statements of opinion—an academic’s ruminations—and therefore are not actionable as defamation. See id. (“[I]n addition to the language, courts must examine ‘the context in which the statement appears’ to determine whether the statement was capable of a defamatory meaning.”) ”

In sum, Kramer was protected by the privilege (at least under New Jersey law) because his report on the lawsuit was full, fair and accurate. This is a well-reasoned opinion because newspaper writers, bloggers and professors have a first amendment right to report on newsworthy items, even if those items are unproven lawsuits. So remember that when I report on the allegations in a complaint, I am reporting on a newsworthy event, even if the allegations are not proven at trial.

The case is captioned Catalanello v. Kramer, 13 civ 7121 (S.D.N.Y).

Edward X. Clinton, Jr.

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