On July 10, 2019, the United States District Court for the Eastern District of Pennsylvania dismissed with prejudice a defamation and false light lawsuit filed by a dancer at a New Jersey Strip club against the New York Daily News, holding that the plaintiff had failed to plead actual malice with respect to her claims.
The case stemmed from a December 2017 Daily News article about the government-ordered closing of the strip club Satin Dolls, best known as a frequent filming location for a popular television series. The article noted that New Jersey state authorities had ordered the shutdown of Satin Dolls after accusing the club of engaging in illegal activity, such as alleged prostitution, lewd activity, racketeering, and extortion-related charges. The article was accompanied by a photograph of two Satin Dolls employees posing with merchandise related to the television series. One of the photographed employees, Diane LoMoro, subsequently sued the Daily News for defamation, claiming that the article falsely linked her to alleged criminal conduct; that the paper allegedly doctored the photo to make Ms. LoMoro appear “fatter, larger, uglier, blotchier, discolored, disproportionate, and grotesque”; and that the Daily News allegedly invaded Ms. LoMoro’s privacy by portraying her in a false light.
In its motion to dismiss, the Daily News pointed out that Ms. LoMoro’s allegations failed to establish that the publication acted with actual malice or material falsity. The Daily News noted that the article discussed alleged criminal conduct only with respect to the club’s owner and the club itself and did not mention or refer to Ms. LoMoro. Thus, Ms. LoMoro failed to allege that the purportedly defamatory content was “reasonably susceptible of a defamatory meaning.” Romaine v. Kallinger, 537 A.2d 284, 287 (N.J. 1988).
Furthermore, Ms. LoMoro did not plausibly allege that the Daily News published the material with “actual malice.” Where a publication involves a matter of public concern, the subjective “actual malice” standard requires plaintiffs to demonstrate that defendants either knew that the published material was false or acted in reckless disregard of the truth or falsity of the statements. This requires “analyzing the thought processes of the particular defendant” and determining that the defendant had a “high degree of awareness of [the] probable falsity [of the publication].” Durando v. Nutley Sun, 37 A.3d 449, 458-59 (N.J. 2012).
Here, the Daily News argued that the article was undoubtedly a matter of public concern. However, Ms. LoMoro’s complaint contained only a conclusory allegation that the Daily News acted with “actual malice,” without alleging facts sufficient to show that the Daily News knew that the article would falsely suggest Ms. LoMoro’s involvement in alleged criminal conduct, or that the Daily News doubted the truth of the article.
With respect to Ms. LoMoro’s allegations about the photograph accompanying the article, the Daily News once again noted that Ms. LoMoro did not meet the actual malice standard. Ms. LoMoro’s complaint merely contained a conclusory assertion that the Daily Mail “intentionally altered and doctored” the photograph to disparage her—yet alleged no details to show that the Daily News knowingly falsified the photograph. Furthermore, Ms. LoMoro never alleged material falsity: that is, that the published photo “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Masson v. New York Magazine, Inc., 501 U.S. 496, 516-17 (1991) (internal citations omitted). The photograph in question simply portrayed Ms. LoMoro posing for a Daily News photographer at the strip club while standing next to merchandise related to a well-known television series. Yet nowhere in her complaint did Ms. LoMoro allege that this photograph was in fact a false depiction. Instead, Ms. LoMoro’s fundamental issue with the photograph appeared to be that it made her look unattractive. As the Daily News pointed out, this was insufficient to give rise to a defamation cause of action. Indeed, allowing such claims to proceed risked subjecting the media to mass liability for publishing any photo without the subject’s advance approval—simply because the subject believed the photograph to be unflattering.
Finally, the Daily News moved to dismiss Ms. LoMoro’s false light invasion of privacy claim for similar reasons—namely, that Ms. LoMoro did not plausibly allege actual malice or material falsity.
The Court agreed with the Daily News, dismissing Ms. LoMoro’s claims with prejudice for failure to meet the “actual malice” standard. The LoMoro case highlights the strong protections afforded to defendants that publish material on matters of public concern, given the “significant societal benefit in robust and unrestrained debate on matters of public interest.” Durando, 37 A.3d at 247-48 (quoting Senna v. Florimont, 958 A.2d 427, 491 (2008)).