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Journalists are more often defendants than plaintiffs in defamation cases, but a suit in Monmouth County, N.J., has put the shoe on the other foot, and is testing whether a news reporter is a public figure who must prove actual malice in order to prevail. The defense, raised by former Deputy Public Defender Robert Tarver in a suit against him by an Asbury Park Press reporter, appears to be one of first impression in New Jersey — perhaps fitting for a libel suit that is itself highly unusual. “This case turns First Amendment jurisprudence on its head,” wrote Tarver’s attorney, Bruce Rosen of McCusker, Anselmi, Rosen, Carvelli & Walsh in Chatham, N.J., in a motion to dismiss the complaint. “[A] reporter’s impartiality is called into question by news subjects … and the reporter files a lawsuit for defamation.” The reporter, Carol Gorga Williams, has accused Tarver and his former lawyer, Red Bank’s Linda Kenney, of spreading a false rumor that Williams, who is married, was sleeping with a source who helped her with a series of damaging stories about Tarver’s reign as chief of the Ocean County Office of the Public Defender. Williams was reassigned by her editors to a different beat after Kenney complained to them about the “personal relationship” she said Williams had with the source. The stories detailed a probe into a complaint about Tarver’s ethics from one of his staff attorneys. The probe, orchestrated by then-Acting Public Defender Peter Garcia, plunged the entire staff of the Ocean office into a months-long fugue of paranoia and recrimination. Eventually, Garcia accused Tarver of using his appearances as a legal commentator on Court TV, CNN and the “Bryant Gumbel Show” to promote a private celebrity law practice. In response, Tarver retained Kenney, a labor lawyer, and accused Garcia of racism in a suit claiming constructive discharge. Tarver, who is black, argued that he had been subject to a higher level of scrutiny than had white managers. The suit settled last July, with the state paying Tarver $150,000. Garcia was replaced as the state’s public defense chief last September; he is now a deputy attorney general. Tarver is now director of program operations at Ocean-Monmouth Legal Services. Rosen’s motion in the libel suit, Williams v. Kenney, MON-L-202-03, asserts that it was Williams who committed libel against Tarver by underplaying his side of the Garcia probe story. When Tarver filed his discrimination suit, which was the fullest explanation Tarver has given of his side of the Ocean County controversy, Williams did not write a story about it for more than a month, the motion states. Williams’ attorney, Richard Ragsdale of Carchman, Sochor, Schwartz & Ragsdale in Princeton, N.J., faults Rosen on procedural grounds. “The motion is premature,” he says. “You can’t decide any of these fact-sensitive issues until discovery is complete. We think this is a strong case that will get stronger as we get more facts.” He declines further comment. The libel suit places Rosen — the bulk of whose practice is spent defending media clients, such as The New York Times — in an unusual position: arguing that the rights of a reporter should be lessened. “As a media lawyer I am loath to bring this,” Rosen says. “We sign a pledge not to sue media entities. I would never sue a media entity. I feel bad about all of this. If this case goes forward, what am I going to have to do, depose the Asbury Park Press editors?” Rosen’s apologia is that he is not a media lawyer but a “defamation defense” lawyer.

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