Rosanova v. Playboy Enterprises, Inc.

• Decision Date: 25 September 1978
• Docket Number: No. 76-2300,76-2300
• Citation: 580 F.2d 859
• Parties: 4 Media L. Rep. 1550 Louis F. ROSANOVA, Plaintiff-Appellant, v. PLAYBOY ENTERPRISES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 859

580 F.2d 859

4 Media L. Rep. 1550

Louis F. ROSANOVA, Plaintiff-Appellant, v. PLAYBOY ENTERPRISES, INC., Defendant-Appellee.

No. 76-2300.

United States Court of Appeals Fifth Circuit.

Sept. 25, 1978.

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 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 public figure status of Mr. Rosanova "out of the whole cloth." There is no evidence upon which the district judge could have found that the defendant before the court "bootstrapped" by itself or in league or conspiracy with others. The court considering the motion for summary judgment was concerned with the availability of the limited defense to the defendant before the court. Appellant incorrectly asserts that the court should have examined the bona fides of the media-universal as a monolithic, nonpresent defendant, represented by Playboy in this case.

In determining the availability of the defense to appellee in this case, Mr. Rosanova must be seen as he was when the article was published by this appellee. The trial judge correctly found that he was then, indeed, a public figure, subject to media comment as such.

The trial court held that it was the duty of the trial judge to determine whether or not the appellant was a public figure. Inasmuch as, in this case, the undisputed evidence required a finding that Rosanova was a public figure, the trial court was clearly correct. We need not decide whether or not, in all cases, the determination of that issue would be a function of the court. The majority of courts have treated it as a court question and not one for the jury. E. g., Hoffman v. Washington Post Co.,433 F.Supp. 600, 604 (D.D.C.1977); Hutchinson v. Proxmire, 431 F.Supp. 1311, 1326 (W.D.Wis.1977), Aff'd, 579 F.2d 1027 (7th Cir. 1978); Wolston v. Reader's Digest Association, 429 F.Supp. 167, 176 (D.D.C.1977); Hotchner v. Castillo-Puche, 404 F.Supp. 1041, 1045 (S.D.N.Y.1975), Rev'd on other grounds, 551 F.2d 910 (1977). Some appear to hold otherwise. Reliance Insurance Co. v. Barron's, 442 F.Supp. 1341, 1346 (S.D.N.Y.1977); Martin Marietta Corp. v. Evening Star Newspaper, 417 F.Supp. 947, 954 (D.D.C.1976). Nevertheless, where undisputed facts admit to...