Piscatelli v. Smith

HARRELL, J. American poet, author, and essayist William Carlos Williams wrote, “It is not what you say that matters but the manner in which you say it. There lies the secret of the ages.” Selected Essays, preface at i (1954). Respondents in the present case, CEGW, Inc., owner of the Baltimore-based City Paper, and Van Smith (Smith), a reporter, published in 2006-07 two articles in the City Paper that reported on the 2003 double murder in Baltimore of Jason Convertino (Convertino) and Sean Wisniewski (Wisniewski). Petitioner, Nicholas A. Piscatelli (Piscatelli), who was mentioned unflatteringly in the articles, perceived that his reputation had been injured thereby and he had been portrayed in a false light.

Piscatelli sued Respondents in the Circuit Court for Baltimore City for damages based on defamation and false light claims. The Circuit Court granted Respondents’ motion for summary judgment, which judgment the Court of Special Appeals affirmed subsequently upon Piscatelli’s appeal. Having granted Piscatelli’s petition for writ of certiorari, we shall conclude ultimately that the manner in which Respondent published those statements placed them within the protective embrace of the fair reporting and fair comment privileges, and consequently, Piscatelli’s claims were not actionable. Therefore, we affirm as a matter of law.

I. FACTS AND PROCEDURAL HISTORY In 2006 and 2007, Smith authored, and the City Paper published, two articles (one in each year) revisiting the 2003 murders of Convertino and Wisniewski and the trial of Anthony Jerome Miller (Miller) for those crimes. Respondents published the first article, entitled “Late Discovery,” on 6 December 2006, and published the second, entitled “The Lonely Killer,” on 20 June 2007. Both articles more than hinted that Piscatelli may have been involved in the murders, despite ³⁰³ that he was not charged criminally in connection with the crimes. Convertino and Wisniewski were murdered on or about 11 April 2003, in the Fells Point neighborhood of Baltimore.

Prior to his death, Convertino worked for Redwood Trust, a Baltimore nightclub located in a former bank building (hence the name of the nightclub), managing and procuring music acts for the club. Wisniewski worked also for Redwood Trust, as well as for a nightlife promotions company that held events at Redwood Trust occasionally. Piscatelli owned Redwood Trust. Two years after the murders, a police investigation concluded that Miller committed the crimes.

The State charged him on 17 February 2006. Miller was tried and found guilty in the Circuit Court for Baltimore City of two counts of second degree murder and sentenced to two consecutive 30-year prison terms. Insofar as Piscatelli was concerned, Respondents highlighted in their articles two particular aspects of the Miller trial. First, on or about 27 October 2006, the State’s Attorney provided to Miller’s defense counsel a memorandum containing supplemental discovery responses.

The memorandum contained the following summary of a conversation Convertino’s mother, Pam Morgan (Morgan), had with police detectives investigating the murders: Pam Morgan has stated that an unknown man approached her at a benefit in Binghamton, New York, held for her son’s child shortly after his murder. The man advised her that Nick Piscatelli was behind her son’s murder, he covered his tracks and hired someone to kill him. This memorandum became part of the criminal case file and the public record, although it was not offered in evidence at Miller’s trial. The second feature of the newspaper reporting relevant to Piscatelli was that Miller’s defense counsel and the prosecutor examined Piscatelli as a witness during Miller’s trial.

The prosecutor asked Piscatelli bluntly if he had anything to do ³⁰⁴ with the murder of Convertino; Piscatelli responded that he did not. Piscatelli testified also that: Convertino had been planning to leave Redwood Trust for a similar position with a rival nightclub; Convertino planned to switch Sean “P. Diddy” Combs, a popular musician at that time, from performing at Redwood Trust to the rival nightclub; and, Piscatelli suspected Convertino of taking larger commissions than he was due during his employment at Redwood Trust. Respondents reported the statement from the supplemental discovery memorandum in both articles and Piscatelli’s Miller trial testimony in the 20 June 2007 article. Respondents included in the articles additional relevant comments that may be distilled into three themes: the double murder remains “mysterious,” despite Miller’s conviction; Piscatelli may have had a motive to kill Convertino; and, Morgan believed Piscatelli may be involved in her son’s murder.

Based on these articles, Piscatelli filed a complaint in the Circuit Court on 5 December 2007, advancing counts of defamation and false light against Respondents, Smith and CEGW, Inc. Respondents retorted with a motion for summary judgment, arguing, as they do before us, that Piscatelli failed to establish that Respondents’ statements were false and the fair reporting and fair comment privileges protected any allegedly defamatory material. Piscatelli, in his opposition to summary judgment in the trial court, contended that accusations of his involvement in the murders were false and Respondents abused their fair reporting and fair comment privileges. On 17 February 2009, the trial judge issued a written order stating, without further explication, that there was no dispute of material fact and Respondents were entitled to judgment as a matter of law. Piscatelli filed timely an appeal to the Court of Special Appeals, maintaining that the Circuit Court granted improperly summary judgment because Respondents abused their fair reporting and fair comment privileges.

The panel of the Court of Special Appeals concluded ultimately, in a reported opinion, that the trial judge granted properly summary judg ³⁰⁵ ment because Respondents’ statements were privileged and not defamatory. Piscatelli v. Smith, 197 Md.App. 23, 41-42 , 12 A.3d 164, 175 (2011). Piscatelli filed timely a petition for writ of certiorari with this Court, which we granted. 419 Md. 646 , 20 A.3d 115 (2011). He presents two questions for our consideration: whether the Circuit Court granted improperly summary judgment regarding the fair reporting privilege because Respondents abused that privilege, and whether the fair comment privilege applies to derogatory opinions based on purportedly defamatory statements. 1 II.

STANDARD OF REVIEW The standard of appellate review of the grant of summary judgment is whether the trial court was legally correct, because the trial court decides issues of law, and not disputes of fact, when considering a motion for summary judgment. Rosenberg v. Helinski, 328 Md. 664, 674 , 616 A.2d 866, 871 (1992) (citing, among other cases, Heat & Power v. Air Prods., 320 Md. 584, 591-92 , 578 A.2d 1202, 1206 (1990)). A trial court may grant summary judgment if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id.

(citing Md. Rule 2-501 (e)). For purposes of the analysis, reasonable factual inferences from the well-pled factual allegations are assumed in favor of the non-moving party. Orrison v. Vance, 262 Md. 285, 292 , 277 A.2d 573, 576 (1971) (citing Brown v. Suburban Cadillac, 260 Md. 251, 255 , 272 A.2d 42, 44 (1971)).

III

DISCUSSION Piscatelli advanced two counts in his complaint: defamation and invasion of privacy (false light). We shall address ³⁰⁶ in greatest detail Piscatelli’s defamation claim, but need not address the false light claim separately. An allegation of false light must meet the same legal standards as an allegation of defamation. Harnish v. Herald-Mail Co., 264 Md. 326, 337 , 286 A.2d 146, 152-53 (1972); Phillips v. Wash.

Magazine, Inc., 58 Md.App. 30 , 36 n. 1, 472 A.2d 98 , 101 n. 1 (1984). We shall conclude ultimately that Respondents did not defame Piscatelli actually, rendering superfluous a separate analysis of his false light claim. In order to plead properly a defamation claim under Maryland law, a plaintiff must allege specific facts establishing four elements to the satisfaction of the fact-finder: “ ‘(1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm.’ ” Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 441 , 966 A.2d 432, 448 (2009) (quoting Offen v. Brenner, 402 Md. 191, 198 , 935 A.2d 719, 723-24 (2007)).

For purposes of the first element, a “defamatory statement” is one that tends to expose a person to “ ‘public scorn, hatred, contempt, or ridicule,’ ” which, as a consequence, discourages “ ‘others in the community from having a good opinion of, or associating with, that person.’ ” Brodie, 407 Md. at 441 , 966 A.2d at 448 (quoting Offen, 402 Md. at 198-99 , 935 A.2d at 724 ). Under the second element, a “false” statement is one “that is not substantially correct.” Batson v. Shiflett, 325 Md. 684, 726 , 602 A.2d 1191, 1213 (1992). The plaintiff carries the burden to prove falsity. Id.

To determine whether a publication is defamatory, a question of law for the court, the publication must be read as a whole: “ ‘[W]ords have different meanings depending on the context in which they are used and a meaning not warranted by the whole publication should not be imputed.’ ” Chesapeake Publ’g Corp. v. Williams, 339 Md. 285, 295 , 661 A.2d 1169, 1174 (1995) (quoting Batson, 325 Md. at 723 , 602 A.2d at 1210 ). Where a defendant asserts a privilege in a motion for summary judgment in a defamation action, we consider first ³⁰⁷ whether the asserted privilege applies. See Rosenberg v. Helinski, 328 Md. 664, 675-76 , 616 A.2d 866, 871-72 (1992); Orrison v. Vance, 262 Md. 285, 292-93 , 277 A.2d 573, 576 (1971); Peroutka v. Streng, 116 Md.App. 301, 312 , 695 A.2d 1287, 1293 (1997). Thus, we assume that the plaintiffs allegations of defamation are true for purposes of evaluating whether the privilege exists.

Rosenberg, 328 Md. at 675-76 , 616 A.2d at 871-72 ; Orrison, 262 Md. at 292-93 , 277 A.2d at 576 ; Peroutka, 116 Md.App. at 312 , 695 A.2d at 1293 . In some circumstances, an absolute or qualified privilege defeats a claim of defamation, if the defendant did not abuse that privilege. Hanrahan v. Kelly, 269 Md. 21, 29-30 , 305 A.2d 151, 156 (1973) (citing Wetherby v. Retail Credit Co., 235 Md. 237, 241 , 201 A.2d 344, 347 (1964)). “‘An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.’ ” Smith v. Danielczyk, 400 Md. 98, 117 , 928 A.2d 795, 806 (2007) (quoting Di Blasio v. Kolodner, 233 Md. 512, 522, 197 A.2d 245, 250 (1964)). Here, Respondents contended that two conditional privileges insulated their allegedly defamatory remarks: the fair reporting and fair comment privileges.

Whether a conditional privilege exists is a question of law, and the defendant bears the burden of proof to establish the privilege. Woodruff v. Trepel, 125 Md.App. 381, 402 , 725 A.2d 612, 622 (1999) (citing Simon v. Robinson, 221 Md. 200, 205 , 154 A.2d 911, 914 (1959)). Once a prima facie case for a privilege is adduced, the plaintiff must produce facts, admissible in evidence, demonstrating the defendant abused the privilege, in order to generate a triable issue for the fact-finder. Hanrahan, 269 Md. at 29 , 305 A.2d at 156 ; Kapiloff v. Dunn, 27 Md.App. 514, 530-32 , 343 A.2d 251, 262 (1975).

To demonstrate abuse of the privilege, the plaintiff must demonstrate that the defendant made his or her statements with malice, defined as “a person’s actual knowledge that his [or her] statement is false, ³⁰⁸ coupled with his [or her] intent to deceive another by means of that statement.” Ellerin v. Fairfax Sav. F.S.B., 337 Md. 216, 240 , 652 A.2d 1117, 1129 (1995); see also Le Marc’s Mgmt. Corp. v. Valentin, 349 Md. 645, 651-56 , 709 A.2d 1222, 1225-28 (1998) (adopting the Ellerin malice standard for awarding punitive damages and proving abuse of defamation privileges). 2 All relevant circumstances are admissible when determining whether a defendant abused a common law defamation privilege, “including the defendant’s reasonable belief in the truth of his statements, the excessive nature of the language used, whether the disclosures were unsolicited, and whether the communication was made in a proper manner and only to proper parties.” Orrison, 262 Md. at 295 , 277 A.2d at 578 (internal citations omitted); see also Woodruff, 125 Md.App. at 402-03 , 725 A.2d at 623 . While malice is usually a question for the fact-finder, it need not be submitted to the fact-finder when the plaintiff fails to allege or prove facts that would support a finding of malice.

Chesapeake Publ’g Corp., 339 Md. at 302 , 661 A.2d at 1177 ; Orrison, 262 Md. at 294 , 277 A.2d at 577 ; Woodruff, 125 Md.App. at 402 , 725 A.2d at 622 (citing Simon, 221 Md. at 205-06 , 154 A.2d at 914-915 ) (“Once a judge determines that a privilege exists, the question of whether the privilege was abused is for the jury, subject to the censorial power of the judge where there is no evidence of malice, and the burden on the issue is on the plaintiff.”). ³⁰⁹ A. The Fair Reporting Privilege 1. Generally With this foregoing background setting in mind, we address Piscatelli’s first contention: that Respondents’ abuse of the fair reporting privilege was, on this record, a triable issue for a jury. Piscatelli argues this is “not appropriate for resolution by summary judgment .... unless the record is absolutely devoid of any evidence that the City Paper did not fairly and accurately report” what transpired over the course of Miller’s prosecution, in so far as Piscatelli was mentioned. Because we conclude that the record extract before us is devoid of unfair or inaccurate reporting, Piscatelli failed to meet the burden of production necessary to create an issue for a fact-finder of whether abuse of the privilege occurred.

The fair reporting privilege is a qualified privilege to report legal and official proceedings that are, in and of themselves defamatory, so long as the account is “fair and substantially accurate.” Chesapeake Publ’g Corp. v. Williams, 339 Md. 285, 296 , 661 A.2d 1169, 1174 (1995) (citing Rosenberg v. Helinski, 328 Md. 664, 676-77 , 616 A.2d 866, 872 (1992)). The privilege arises from the public’s interest in having access to information about official proceedings and public meetings. Restatement (Second) of Torts § 611 cmt. a (1977); see also Rosenberg, 328 Md. at 679-80 , 616 A.2d at 873-74 . A defendant abuses his or her fair reporting privilege, not upon a showing of actual malice (as with other common law conditional privileges), 3 but when the defendant’s account “ ‘fails the ³¹⁰ test of fairness and accuracy.’ ” Chesapeake Publ’g Corp., 339 Md. at 297 , 661 A.2d at 1175 (citing Rosenberg, 328 Md. at 677-78 , 616 A.2d at 872-73 ).

Fairness and accuracy is satisfied when the reports are substantially correct, impartial, coherent, and bona fide. Batson v. Shiflett, 325 Md. 684, 727 , 602 A.2d 1191, 1213 (1992) (citing McBee v. Fulton, 47 Md. 403, 417, 426 (1878)). Although whether a report is fair and accurate is ordinarily a question of fact for the fact-finder, Batson, 325 Md. at 727 , 602 A.2d at 1213 , summary judgment is appropriate where the plaintiff fails to point to evidence of unfairness and inaccuracy. See Rosenberg, 328 Md. at 679 , 616 A.2d at 873 (affirming summary judgment where defendant established the fair reporting privilege and there was “no trace of malice”). 2.

The Fair Reporting Privilege Applies to Respondents’ Reporting of the Supplemental Discovery Memorandum and Piscatelli’s Trial Testimony In the present case, the fair reporting privilege applies to Respondents’ reporting of the excerpt from the supplemental discovery memorandum and the summary of Piscatelli’s trial testimony. As to the supplemental discovery memorandum, Respondents wrote in the two articles: On Oct. 27, [the prosecutor] disclosed in a memorandum to the defense that “Pam Morgan [Convertino’s mother] has stated that an unknown man approached her at a benefit in Binghamton, New York, held for her son’s child shortly after his murder. The man advised her that Nick Piscatelli was behind her son’s murder, he covered his tracks and hired someone to kill him.” The memo does not indicate when Morgan shared this information with investigators, but she told City Paper during a Nov. 30 phone interview that the event was held in May 2003, just weeks after the murders. “At the benefit, this guy comes up to me and he says he knows who was behind my son’s murder,” Morgan recalls. “I didn’t know Nick [Piscatelli] at that point.”.... “[The ³¹¹ unknown man] came in, talked, and left,” she continues. “I was like, “Whoa!”.... One of the things she shared with the police had to do with Piscatelli.

About a month after the killings, in May 2003, a benefit was held near Binghamton to raise money for Convertino’s young daughter. About 500 people showed up, and while it was going on, Morgan says she was approached by a man she’d never seen before and hasn’t seen since. “He said that Nick Piscatelli was behind my