Senna v. Florimont, 196 N.J. 469 (2008) 958 A.2d 427 196 N.J. 469 Supreme Court of New Jersey. Randy SENNA, va Flippers Fascination, Plaintiff-Appellant, V. Walter FLORIMONT and 2400 Amusements, Inc., t/a Olympic Enterprises, Defendants-Respondents, and Robert Mehlbaum and John Doe A & John Doe B, Defendants. Argued Feb. 20, 2008. Decided Sept. 22, 2008.Synopsis Background: Operator of boardwalk game of chance filed action against competitor for defamation and tortious interference with plaintiff's ability to conduct business. The Superior Court, Law Division, Cape May County, Docket No. CPM-L-576-03, dismissed defamation claim on summary judgment after concluding operator could not prove actual malice. Operator appealed. The Superior Court, Appellate Division, 2007 WL 1542017, affirmed. Granting certification, the Supreme Court, Albin, J., held that negligence, as opposed to actual malice, was applicable common-law standard for defamation claim involving broadcasts by competitor's employees to boardwalk customers over public address system that operator was "dishonest" and "a crook" and "screwed all of his customers" at former location by not redeeming prize tickets. Judgment of Appellate Division reversed and case remanded.Opinion Justice ALBD' delivered the opinion of the Court. *473 In this case= we once again address the degree to which speech, even speech that may disseminate falsehoods damaging the reputation of a person, should be protected 'om a defamation lawsuit. Balancing the right to speak heel}: and the right to be secure in *4T4 one's good namedetermining how much protection should be given to speech at the exp ense of reputationis at the heart of this case. In a general defamation case, a plaintiff claiming to be damaged by a false statement will succeed if he shows that the speaker acted negligently in failing to ascertain the truth of the statement. However, we give greater protection to speech involving public ofcials, public gures, and the public interest because of the important role that uninhibited and robust debate plays in our democratic society. In those cases, the plainti" must prove actual malice, showing that the speaker made a false and defamatory statement either knowing it was false or in reckless disregard of the truth. Ihe actual-malice standard tolerates more falsehood and harm to reputation than the negligence standard in order to shield highly valued speech 'om ruinous lawsuits. The issue on appeal is whether defendant Walter Florimont. an operator of a boardwalk game of chance, whose employees broadcast over a loudspeaker that a nearby boardwalk competitor, plaintiff Randy Senna, was a cheat, is entitled to the heightened protection of the actual-malice standard. The trial court dismissed plaintiff's defamation lawsuit on summary judgment, finding first that the actual-malice standard applied because games of chance, as a highly regulated industry, are a matter of public concern, and second that plaintiff could not prove actual malice. The Appellate Division affirmed. We now reverse and hold that the false and defamatory verbal broadsides of defendant's employees. impugning the honesty of a business competitor, fall into the category of commercial speech that is not entitled to heightened protection under the actual-malice standard.A. In 2003, plainti Senna owned Fh'pper's Fascination, an arcade game on the boardwalk in Wildwood. His rival, defendant *475 Florimont, owned defendant 2400 Amusements, Inc., trading as Olympic Enterprises, located nearby on the boardwalk in North Wildwood.1 Fascination is a competitive game of chance regulated by the State's Legalized Games of Chance Control Commission. The rst player to roll balls into ve holes that form a vertical, horizontal, or diagonal row wins the game and receives tickets that can be \"431 redeemed for prizes. See Rather: 1'. Keuper; 43 NJSrtper'. 128, 131, 1314.31 906 (Ch.Div.19:'6) (describing game of Fascination). Senna operated a Fascination parlor in Keansburg from the late 19705 through 1984 and one in Seaside Heights from 1987 to 1995. 1While looking for a new site for his business, Senna spoke with Florimont, who recommended that he locate his Fascination parlor in Rehoboth Beach, Delaware. Instead, in 1996, Senna decided to open his Fascination arcade in Wildwood, placing him in direct competition with Florimont. Florimont told Senna that "'[t]his is my town\" and \"I'm going to run you out of business.\" Senna remained Florimont's employees called Senna "dishonest\" and \"a crook,\" charging that he 'ran away and screwed all of his customers in Seaside.\" " As they had done several years earlier, Florimont's employees specically accused Senna of having left his Seaside Heights customers with worthless prize ticketstickets that he would not honor in Wildwood and warned that he would cheat his customers again. B. In March 2004, plainti' Senna led a civil complaint in the Law Division, Cape May County, alleging that defendants Fiorimont and 2400 Amusements, as well as Robert Mehlbaum and two John Does, defamed him and tortiously interfered with his ability to conduct business as Flipper's Fascination} The claim against Mehlhaum was based on an alleged Internet posting in which he accused Senna of running a fraudulent operation by \"cheating patron [5] out of prizes" and \"overcharging for prizes."3 Plainti demanded compensatory and punitive damages. The trial court granted summary judgment in favor of defendants, dismissing both the tortious interference and defamation claims. First, the court noted that plaintic had not provided any evidence that he had suffered actual economic damagesan element necessary to sustain the locate his Fascination parlor in Rehoboth Beach, Delaware. Instead, in 1996, Senna decided to open his Fascination arcade in Wildwood, placing him in direct competition with Florimont. Florimont told Senna that "[t]his is my town\" and \"I'm going to run you out of business.\" Senna remained undeterred. To keep his client base, Senna ran an "almost ill-page ad\" in the Asbwfy Park Press in which he promised that prize tickets won at his Seaside Heights parlor would be honored at the new VVildwood location. Soon afterwards, Senna was informed that staff members at Florimont's Olympic Fascination were telling Olympic's boardwalk customers that Senna would not honor the prize tickets that he had issued. Senna asked Florimont to restrain his employees from \"bad-mouth[ing]"' him and his business with false and derogatory comments. According to Senna, however, Florimont's employees continued to verbally assail his business. Within a few months, Senna closed down his Wildwood Fascination parlor, only to resurrect it in 2000 under the name of Flipper's Fascination. *476 On dates in July, August, and September 3003, Florimont's employees broadcast over a public address system to his boardwalk customers that Flipper's Fascination and its owner, Senna, were imamming the public. The triai court granted summary judgment in favor of defendants, dismissing both the tortious interference and defamation claims. First, the court noted that plaintiff had not provided any evidence that he had suffered actual economic damagesan element necessary to sustain the tortious interference claims. Second, to succeed on the defamation claims, the i\"\"432 court maintained *477 that plaintiff had to show that defendants acted with actual malice. The standard of actual malice requires proof that defendants made the aegedly defamatory statements either knowing that they were false or in reckless disregard of the truth. The court applied that heightened standard because the speech alleged to be defamatory concerned "' 'a highly regulated industry' " and \"a matter of legitimate public concern" \"games of chance. (Quoting Itaflmi'mnou'er Repair: Inc. 1'. Bergen Record Corp. 139 NJ. 392, 410, 655 A.2d 41? [1995), cert. denied, 516 US. 1066, 116 S.Ct. T52, 133. L.Ed.2d T00 (1996]). The court concluded that suicient evidence had not beenpresented to show that Florimont or his employees acted with actual malice in defaming plainti'. C. In an unpublished, per curiam opinion, the Appellate Division afrmed the summary judgment dismissal of plainti's