580 F.2d 859 (5th Cir. 1978), 76-2300, Rosanova v. Playboy Enterprises, Inc.

Docket Nº:76-2300.
Citation:580 F.2d 859
Party Name:Louis F. ROSANOVA, Plaintiff-Appellant, v. PLAYBOY ENTERPRISES, INC., Defendant-Appellee.
Case Date:September 25, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 859

580 F.2d 859 (5th Cir. 1978)

Louis F. ROSANOVA, Plaintiff-Appellant,


PLAYBOY ENTERPRISES, INC., Defendant-Appellee.

No. 76-2300.

United States Court of Appeals, Fifth Circuit

September 25, 1978

Page 860

Reginald C. Haupt, Jr., Savannah, Ga., for plaintiff-appellant.

Walter C. Hartridge, Savannah, Ga., Michael L. Shakman, Chicago, Ill., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before COLEMAN, HILL, and RUBIN, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This diversity case involves a charge of libel against Playboy Enterprises, Inc. on the basis of an article in Playboy Magazine which referred to Mr. Rosanova as a "mobster." The district court opinion 1 outlines the development of the applicable law in the area of defamation and First Amendment rights, as well as setting out in detail the facts of the case. After extensive discovery by both sides, Playboy moved for summary judgment. This appeal is from the district court's grant of summary judgment in the defendant's favor. The issues on appeal are (1) whether the district court was correct in concluding that the plaintiff is a public figure for purposes of this suit, and, if so, (2) whether the district court was correct in concluding, from the record, that

Page 861

there was no actual malice on the part of the defendant.

The district court was correct in recognizing Mr. Rosanova as a public figure under Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), for purposes of this suit. Although the public figure concept has eluded a truly working definition, 2 it falls within that class of legal abstractions where "I know it when I see it," in Mr. Justice Stewart's words. See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring).

There is no dispute that appellant has been the subject of published newspaper and other media reports of his activities. The nature of his reported associations and activities concerning organized crime, are, without dispute, subjects of legitimate public concern. 3 While appellant never disputed that he has associated with various personalities who appear, themselves, to be subjects of widespread media reports, he seeks to dispute the accuracy of prior published characterizations of himself and descriptions of his associates.

In short, appellant does not proffer proof disputing Playboy's evidence that appellant is and was a public figure; he asserts that he has never sought such a status and that, in truth, he ought not have become one.

In our view of the law resulting from the inevitable collision between First Amendment freedoms and the right of privacy, the status of public figure Vel non does not depend upon the desires of an individual. The purpose served by limited protection to the publisher of comment upon a public figure would often be frustrated if the subject of the publication could choose whether or not he would be a public figure. Comment upon people and activities of legitimate public concern often illuminates that which yearns for shadow. It is no answer to the assertion that one is a public figure to say, truthfully, that one doesn't choose to be. It is sufficient, as the district court found, that "Mr. Rosanova voluntarily engaged in a course that was bound to invite attention and comment." 411 F.Supp. at 445.

Plaintiff argues that consideration of past media reports in the determination of public figure status allows defamation defendants to " bootstrap" themselves into the protection thus afforded. We need not decide whether or not such a contention might ever prevail. No proper basis for such an assertion is present here. There is no claim in this case that the publisher of this allegedly defamatory article first set out to protect itself by creating the...

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