N.J. Supreme Court: Boardwalk Barker Speech Not Protected

TRENTON — Boardwalk business owners are not allowed to make defamatory statements about their competitors, according to a recent ruling by the state’s highest court.
The New Jersey Supreme Court Monday decided that Randy Senna, operator of Flipper’s Fascination near Youngs Avenue on the Wildwood Boardwalk, could sue his competitor Walter Florimont and his company, 2400 Amusements, Inc. (t/a Olympic Enterprises), for defamation.
“The workers at Walter’s store used the microphone to call me a cheat and a crook,” Senna told the Herald Monday after the court’s opinion was released. “They defamed me and my business and the worst thing of all was that they knew it was a lie and admitted to running a smear campaign.”
In its decision, the Supreme Court reversed the trial and appellate courts’ dismissal of the lawsuit and their finding that games of chance, being highly regulated by the state, are a matter of public interest and that speech against them is held to a higher standard (actual malice) than that in a general defamation case.
According to the court, actual malice requires proof that defendants made the allegedly defamatory statements either knowing that they were false or in reckless disregard of the truth.
Florimont’s attorneys urged the court not to create “a competitor’s exception or commercial exception” to the actual-malice standard or distinguish between media and non-media defendants, according to the court. The New Jersey Press Association also filed an amicus curiae (friend of the court) brief in which it maintained that individual citizens should receive the same heightened protection as the press.
In the end, however, the court sided with Senna.
“Balancing the right to speak freely and the right to be secure in one’s own good name — determining how much protection should be given to speech at the expense of reputation — is at the heart of this case,” Justice Barry T. Albin stated in the court’s opinion.
“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.”
Fascination, an arcade game that debuted at the 1933 World’s Fair, is a combination between bingo and skee ball in which players roll a ball along a wooden table at a grid of 25 holes at the other end. The first contestant to roll balls into five holes in a horizontal, vertical or diagonal line wins tickets redeemable for prizes.
“This isn’t just a business to me. I’ve dedicated over 30 years of my life to the game of Fascination and the amusement industry,” said the 48 year old who used to play the game for hours a day as a young man growing up by Seaside Heights.
“That’s why I sued and took this case to the Supreme Court after it was dismissed.”
He said that Florimont had been against him since 1996 when first moved his Fascination parlor to Wildwood from Seaside Heights, which he operated from 1987 to 1995. He opened his first Wildwood store on the Boardwalk between Glenwood and Maple avenues.
He was forced to close after only a few months due to ongoing problems with his landlord, he said.
“Walter told me ‘this is my town…I’m going to run you out of business’,” Senna said. “His employees used the microphone to say I wouldn’t accept tickets from my old store when they knew that I would take those or tickets from any Fascination store.”
Senna later opened Flipper’s Fascination in 2000 and filed the lawsuit in March 2004 after continued verbal allegations of dishonesty by Florimont’s employees over the public address system at the competing Fascination parlor.
He said he his business and personal reputations were hurt by the barkers’ comments because “the public assumes what they say has to be true.” He also alleged that they posted defamatory comments about him on the Internet.
Senna claimed that Florimont would come to Flipper’s and intimidate the players. Senna said he was upset because he still considers Florimont a friend.
“Walter was one of my mentors,” Senna said. “I don’t know why he did it. There was enough business for both of us.”
Senna said his faith in the justice system was restored by the Supreme Court’s decision, which he called the right one.
“My attorney (Scott Becker) told me it was a long shot for the Supreme Court to even take the case,” he said. “But, I wasn’t able to sleep at night and had to see it through to the end. Not only did they do it but they thumbed their noses at me.”
Florimont declined to comment for this story.
Contact Hart at (609) 886-8600 Ext 35 or at: jhart@cmcherald.com