"Dive Bar" Pub Review Lands Magazine in Deep Water

Being called a “dive bar” by Philadelphia Magazine might be considered a selling point for a drinking establishment. But the owners of the Irish Pub and Inn in Atlantic City, N.J., would beg to differ.

Richard and Cathy Burke claim the magazine's characterization of the pub as a “dive bar” patronized by “broken-down black jack addicts” and “self-professed black sheep of the family” is defamatory and could even expose the pub to an eminent domain action by the city.

The magazine included a review of the pub in last winter's edition of its “A.C. Now” supplement. “Defendants intended to and likely succeeded in causing the readers of the Publication to view the Irish Pub and Inn as a disreputable establishment to be avoided at all cost,” the Burkes say in their libel complaint.

One dictionary, indeed, defines the term “dive bar” as a “disreputable entertainment establishment,” while another says it represents a “cheap, dingy drinking establishment.”

Libel cases over restaurant reviews don't normally get very far because of the strong protection for statements of opinion and the difficulty of proving actual malice. But the Burkes allege a sinister connection between the review and the advertising carried in “A.C. Now,” most of which came from the 11 casinos in Atlantic City.

“The pecuniary harm [of the review] is certainly increased when one considers that the primary competition for Irish Pub and Inn is the casinos, who ... are the primary, if not exclusive advertisers for the Publication and, not coincidentally, the recipients of consistently glowing endorsements in the Publication,” the suit says.

The plaintiffs also try to buttress their allegations with comments from a restaurant consultant who interpreted “dive bar” to mean

An establishment ... that caters to low types of customers who are primarily heavy drinkers of cheap alcoholic beverages. This patronage may include real-time alcoholics, drug addicts, social misfits, troublemakers and those with a tendency for anti-social behavior.”

The test, however, is how a reasonable reader of “A.C. Now” -– not a restaurant consultant -– would interpret “dive bar.” And Philadelphia Magazine editor Larry Platt has suggested it is now a term of endearment.

“The contemporary definition of ‘dive' is not negative,” he told Philadelphia Weekly. “It's become another way of saying a place is kitschy or cool, which we think Atlantic City's Irish Pub is.”

The reference to a clientele of “self-professed black sheep” could be more problematic -– unless customers actually professed themselves to the reviewer in that way. But if the magazine did have any malicious intent to benefit its advertisers at the pub's expense, why use language that is ambiguous at best?

According to the Burkes' consultant, the review has endangered the Irish Pub's future because Atlantic City is using its eminent domain power to acquire “run-down properties” so they can be developed by the casinos.

In two similar cases, a Port St. Lucie, Fla., restaurant is suing a local newspaper while the owner of Chops in Philadelphia is suing a critic who wrote that he ate a “miserably tough and fatty strip steak" at the steakhouse.

By Peyton Burgess
1/23/08