In Nicholas A. Piscatelli v. Van Smith
, et al., No. 18, Sept. Term 2011 (Jan 23, 2012), the Maryland Court of Appeals affirmed that the reporters published articles in the City Paper, which described Nicholas Piscatelli's possible connection to a double murder in an unflattering light, were within the protective embrace of the fair reporting and fair comment privileges, thereby affirming the ruling from the trial court and Court of Special Appeals.
In 2006 and 2007, Van Smith, authored, and the City Paper published, two articles revisiting the trial of Anthony Jerome Miller for the murders of Jason Convertino and Sean Wisniewski. Piscatelli owned Redwood Trust, a popular nightclub. Convertino managed and procured musical acts for the club. Both articles more than hinted that Piscatelli may have been involved in the murders, even though he was not charged criminally.
The two articles at issue quoted a memorandum from the prosecutor in Miller's murder trial regarding Convertino's mother, Pam Morgan, which was made part of the record, though not admitted into evidence, detailing a conversation she had with a stranger who approached her and told her that Piscatelli was involved in her son's murder. The articles also summarize Piscatelli's testimony from Miller's murder trial. As a witness for the State, Piscatelli testified that Convertino was leaving him to work for a competitor and suspected him of taking larger commissions that he was due while working for him. The prosecutor asked Piscatelli bluntly if he had anything to do with the murder, which he denied. On cross-examination, Miller's attorney insinuated that Piscatelli had motive to kill Convertino.
In Piscatelli's suit for defamation and false light, Smith and City Paper moved for summary judgment arguing that Piscatelli failed to establish that the statements at issue were false and that the fair reporting and fair comment privileges protected any allegedly defamatory material. Piscatelli responded that the accusations that he was involved in the murders were false and abused the fair reporting and fair comment privileges.
As to the fair reporting privilege, the Court reiterated that "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". "The privilege arises from the public's interest in having access to information about official proceedings and public meetings". "A defendant abuses his or her fair reporting privilege, not upon a showing of actual malice, but when the defendant's account fails the test of fairness and accuracy." Here, the supplemental discovery memorandum containing Ms. Morgan's account of the conversation with the stranger was part of the Miller criminal case file and was a public record that may be reported without liability for defamation, so long as the report is fair and accurate. Smith's articles included exact quotes from the Morgan memorandum and detailed her recollection which were consistent with the memorandum. Similarly, Smith's articles accurately depicted Piscatelli's trial testimony so as to be a reasonable abbreviation of his entire testimony. Piscatelli conceded as much in his deposition that Smith's summary was accurate. Thus, Smith's statements were reported fairly and accurately and fell within the purview of the fair reporting privilege.
As to the fair comment privilege, Maryland law states that derogatory opinions based on non-defamatory fact, true facts, privileged facts, or facts assumed mutually by the opinion-maker and recipient are privileged. Since the Court concluded that Smith's reporting of the memorandum and Piscatelli's trial testimony were privileged as fair reporting, which was the basis for any opinions, it enabled the readers to judge for themselves the quality of those opinions. "Therefore, what would otherwise have been an allegation of fact becomes merely a comment, or a simple opinion, which the fair comment privilege declaws of its defamatory expression."
In upholding the grant of summary judgment by the trial court and Court of Special Appeals decisions, the Court stated that Piscatelli failed to adduce facts that would be admissible in evidence to demonstrate that Smith and the City Paper's reporting about Miller's murder trial was unfair and inaccurate, which is a burden he bore, in order to present a triable issue for a jury as to whether the fair reporting privilege was abused. Additionally, where Smith and the City Paper expressed simple opinions based on disclosed, privileged statements, those opinions are themselves privileged as fair comment. "Although perhaps an unflattering account of Piscatelli's relationship with Convertino, [Smith's] report was an accurate, fair account of Piscatelli's testimony". "Piscatelli failed to advance any facts to demonstrate otherwise."