549 A.2d 1187 (N.H. 1988), 87-353, Keeton v. Hustler Magazine, Inc.

Docket Nº:87-353.
Citation:549 A.2d 1187, 131 N.H. 6
Opinion Judge:JOHNSON, Justice. SOUTER, J.
Party Name:Kathy KEETON v. HUSTLER MAGAZINE, INC. and Larry C. Flynt.
Attorney:Sheehan, Phinney, Bass & Green P.A., Manchester (Peter S. Cowan, on the brief), and Grutman Miller Greenspoon & Hendler, New York City (Jeffrey H. Daichman, on the brief, and orally), for plaintiff., Wiggin & Nourie, Manchester (Gregory A. Holmes, on the brief), and Cooper, Epstein and Hurewitz P...
Judge Panel:SOUTER, J., with whom THAYER, J., joined, dissented; the others concurred.
Case Date:September 23, 1988
Court:Supreme Court of New Hampshire

Page 1187

549 A.2d 1187 (N.H. 1988)

131 N.H. 6

Kathy KEETON

v.

HUSTLER MAGAZINE, INC. and Larry C. Flynt.

No. 87-353.

Supreme Court of New Hampshire.

September 23, 1988

Page 1188

[131 N.H. 7] Sheehan, Phinney, Bass & Green P.A., Manchester (Peter S. Cowan, on the brief), and Grutman Miller Greenspoon & Hendler, New York City (Jeffrey H. Daichman, on the brief, and orally), for plaintiff.

Wiggin & Nourie, Manchester (Gregory A. Holmes, on the brief), and Cooper, Epstein and Hurewitz P.C., Beverly Hills, Cal. (David O. Carson, on the brief, and Alan L. Isaacman orally), for defendants.

Orr & Reno, Concord (William L. Chapman, on the brief), and Debevoise & Plimpton, New York City (John G. Koeltl, on the brief), for The Magazine Publishers of America, as amicus curiae.

JOHNSON, Justice.

The United States Court of Appeals for the First Circuit (Campbell, C.J.), 828 F.2d 64, has certified to us the following questions of law arising out of a multi-state libel action:

[131 N.H. 8] "1. Does New Hampshire follow an interstate single publication rule in libel cases?

  1. If so, does New Hampshire permit a plaintiff to recover for distribution of a libel in jurisdictions whose own statutes of limitations would bar recovery, where neither party is a New Hampshire resident, where the only factual connection with New Hampshire is the distribution there of one percent or less of the total circulation of the material, and where the relevant statute of limitations has expired in every jurisdiction but New Hampshire?"

    For the reasons stated below, we answer that New Hampshire follows the single publication rule as formulated by the Restatement (Second) of Torts and that, in the circumstances described, we would apply our own statute of limitations to the plaintiff's entire libel action under that rule.

    The facts of the underlying case, as represented by the parties, are briefly these. In October 1980, the plaintiff, Kathy Keeton, brought an action for libel against the defendants, Hustler Magazine, Inc., and its publisher Larry C. Flynt, in the United States District Court for the District of New Hampshire. The action was based on allegedly libelous material appearing in five issues of Hustler Magazine published between September 1975 and July 1976. Keeton had originally brought actions in Ohio in April 1977 for libel and invasion of privacy based on the May 1976 publication. However, the Ohio trial court dismissed the libel action in May 1978 finding that it was barred by Ohio's one-year statute of limitations. In September 1980, the Franklin County, Ohio, Court of Appeals affirmed the trial court's decision to dismiss Keeton's invasion of privacy claim on limitations grounds as well. By this date, the statute of limitations in every jurisdiction except New Hampshire (where the limitations period was then six years) barred Keeton's libel action. She instituted her New Hampshire suit within the month.

    In response, Hustler and Flynt filed pre-trial motions to dismiss the New Hampshire actions on grounds that included lack of personal jurisdiction, improper venue, and the statute of limitations. These motions resulted in a dismissal on personal jurisdiction grounds, which the United States Supreme Court eventually reversed. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). On remand, the district court denied the defendants' renewed motions to dismiss on venue and limitations grounds, and the First Circuit refused to grant a writ of mandamus on these issues. Following a 1986 trial, in which the jury awarded Keeton two million dollars, [131 N.H. 9] the defendants again appealed on venue and limitations grounds to the First Circuit, which then agreed to consider the claims.

    Keeton, the former associate publisher of Penthouse Magazine, is, and was at all times relevant to this action, a New York resident. Flynt and Hustler were Ohio residents at the time of the publications, but have been California residents since mid-1978. From the time of the libels through the present, Hustler has done business in New Hampshire, distributing between 10,000 and 15,000 copies of its magazine (or about one percent of its total circulation) throughout the State each month. The

    Page 1189

    First Circuit determined that, in the context of a multi-state libel action under the single publication rule that would be barred in every State but New Hampshire, these circumstances presented complex legal questions with potential constitutional implications. Because that court found that New Hampshire had not yet addressed certain questions of State law relevant to this difficult and novel suit, this certification followed.

    1. Single Publication Rule

      We first consider whether New Hampshire should follow the single publication rule in libel cases. Keeton urges us to adopt the rule, citing the benefits it affords plaintiffs, defendants, and the judicial system alike. The defendants do not argue to the contrary, but rather contend, for reasons addressed in part II, that we should not apply the New Hampshire statute of limitations to Keeton's suit for nationwide damages under the rule.

      At common law, the multiple publication rule accorded the plaintiff a separate cause of action for each sale or delivery of a copy of the offending publication. See, e.g., Applewhite v. Memphis State University, 495 S.W.2d 190, 193 (Tenn.1973); Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 122-23, 81 N.E.2d 45, 47 (1948); W. Keeton, Prosser and Keeton on Torts § 113, at 800 (5th ed. 1984). Under this rule, a defendant was potentially subject to many suits based on distribution of a single edition of a book or magazine; the rule likewise required the plaintiff to bring many suits in order to recover damages in full. See Restatement (Second) of Torts § 577A comments c and d, at 209-10 (1977). With the advent of modern-day mass publication, this rule became increasingly burdensome, both to the parties and to the judicial system itself. See Church, Etc. v. Minnesota State Med. Ass'n, 264 N.W.2d 152, 155 (Minn.1978); Applewhite, supra at 194. The potential number and geographic dispersion of libel suits, coupled with the possibility that they might be based upon distribution over a long period of time, [131 N.H. 10] was particularly burdensome for defendants. See Restatement (Second) of Torts § 577A comment b, at 209. In response, the majority of courts have adopted the so-called single publication rule. W. Keeton supra.

      The Restatement (Second) of Torts states the single publication rule as follows:

      "(3) Any one edition of a book or newspaper ... or similar aggregate communication is a single publication.

      (4) As to any single publication,

      (a) only one action for damages can be maintained;

      (b) all damages suffered in all jurisdictions can be recovered in the one action; and

      (c) a judgment for or against the plaintiff upon the merits of any action for damages bars any action for damages between the same parties in all jurisdictions."

      Restatement (Second) of Torts § 577A. The Uniform Single Publication Act of 1952, 14 U.L.A. 353 (1980), also embodies this rule, and has been adopted by seven States. ARIZ.REV.STAT.ANN. § 12-651 (1982); CAL.CIV.CODE §§ 3425.1 to 3425.5 (Deering 1984); IDAHO CODE §§ 6-702 to 6-705 (1979); ILL.ANN.STAT. ch. 126, paras. 11 to 15 (Smith-Hurd 1987); N.M.STAT.ANN. §§ 41-7-1 to 41-7-5 (1986); N.D.CENT.CODE § 14-02-10 (Supp.1987); 42 PA.CONS.STAT.ANN. § 8341 (Purdon 1982). A number of other States have adopted the rule by enacting their own statutes or through judicial decision. See, e.g., FLA.STAT. § 770.06 (1987); NEB.REV.STAT. § 20-209 (1983); Church, Etc., supra; Applewhite supra; Gregoire supra.

      Operation of the single publication rule is perhaps best explained in comment e to § 577A of the Restatement:

      "[T]he plaintiff has only one cause of action for the publication. In his single action he may recover damages for the publication to all persons whom the communication has reached or may be expected to reach, whether before or after trial, until its circulation has terminated or the statute of limitations has run against the cause of action. This is true even though the publication has crossed

      Page 1190

      state lines and has been read, heard or seen in every state and in foreign countries; and all damages sustained in all jurisdictions may be recovered in the one action. The purpose of the rule is to include in the single suit all [131 N.H. 11] damages resulting anywhere from the single aggregate publication."

      Restatement (Second) of Torts § 577A comment e, at 210-11. States adopting the rule generally hold, in addition, that the plaintiff's cause of action accrues for limitations purposes on the first date that the publisher releases the finished product for sale. W. Keeton, supra § 113, at 800 and n. 34.

      We recognize the wisdom, in light of modern publishing practices, of adopting the single publication rule as described above. Without the rule, the burden that libel suits would place on parties and the courts might well be intolerable. We therefore join "[t]he great majority of States [that] now follow [the] rule" in libel actions. Keeton v. Hustler Magazine, Inc., 465 U.S. at 777 n. 8, 104 S.Ct. at 1480 n. 8.

    2. Statute of Limitations

      Because the statute of limitations has run on Keeton's libel claim in every State but New Hampshire, the second certified question essentially asks whether we would preserve that claim by applying our own statute to her entire action. We must therefore determine whether, consistent with New Hampshire choice of law rules and the United States Constitution, we may apply the New Hampshire statute of limitations to Keeton's suit for nationwide recovery under the single publication rule, where neither party is a New Hampshire resident and the defendants distributed approximately one percent of the libel in New Hampshire. We...

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