Jacobs, Ch.J., Kearse, C.J., and Gardephe, D.J.
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=118376
PLAINTIFF is serving a lengthy prison sentence. A district court dismissed his complaint alleging libel and emotional distress grounded on newspaper reports that he was an organized crime figure’s “key lieutenant” and that he planned to cooperate with prosecutors. Plaintiff appealed only the court’s determination that the report of his planned cooperation could not be defamatory under governing state law. The Second Circuit affirmed judgment that the reports of his planned cooperation were not defamatory. While a statement is defamatory if someone is exposed to shame “in the minds of right-thinking persons,” under Agnant v. Shakur the population of right-thinking persons excludes “those who would think ill of one who legitimately cooperates with law enforcement.” Although the good opinions of the prison population matters to plaintiff, under the Restatement (Second) of Torts §559, “[t]he fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough [to make the statement defamatory] if the group is one whose standards are so anti-social that it is not proper for the courts to recognize them.”
