Dworkin v. Hustler Magazine, Inc.

• Decision Date: 25 August 1987
• Docket Number: No. CV 86-7768 AWT.,CV 86-7768 AWT.
• Citation: 668 F. Supp. 1408
• Court: U.S. District Court — Central District of California
• Parties: Andrea DWORKIN, Plaintiff, v. HUSTLER MAGAZINE, INC., etc., et al., Defendants.

668 F. Supp. 1408

Andrea DWORKIN, Plaintiff, v. HUSTLER MAGAZINE, INC., etc., et al., Defendants.

No. CV 86-7768 AWT.

United States District Court, C.D. California.

August 25, 1987.

COPYRIGHT MATERIAL OMITTED

Gerald L. Spence, Gary L. Shockey, Elizabeth Greenwood, Spence, Moriarity & Schuster, Jackson, Wyo., for plaintiff.

Alan L. Isaacman, David O. Carson, Kirk N. Sullivan, Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for defendants.

MEMORANDUM OPINION AND ORDER

TASHIMA, District Judge.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff Andrea Dworkin ("Dworkin") is an author and lecturer who is an active member of the feminist antipornography movement. Dworkin and two members of the Wyoming Chapter of the National Organization for Women ("NOW") filed this action in Wyoming state court against Hustler Magazine, Inc. (for simplicity's sake, both the corporate defendant and the magazine are referred to collectively as "Hustler"), its publisher Larry Flynt ("Flynt"), his corporation, Flynt Distributing Company, Inc., Inland Empire Periodicals, the regional distributor of Hustler, and Park Place Market, a retail store that sold Hustler. All plaintiffs asserted claims for violation of and interference with their constitutional rights under the First and Fourteenth Amendments to the Constitution, joint and several liability and violation of Wyoming's obscenity statutes. In addition, Dworkin sued for intentional infliction of emotional injury, libel, invasion of privacy and "outrage."

The action arose from three items, designated (and hereafter referred to) as Exhibits A, B and C, that were published in the February, March and December 1984, issues, respectively, of Hustler. Proper analysis of the issues in this case requires that these exhibits be described in some detail.

Exhibit A is a cartoon that portrays two women apparently engaging in cunnilingus. One woman says to the other, "You remind me so much of Andrea Dworkin, Edna. It's a dog-eat-dog world."

Exhibit B is a sequence of photographs accompanied by captions that appear in comic-book style graphics. It is entitled, "SO MANY DYKES—SO LITTLE TIME. DIRECTED BY AL GOLDSTEIN." The initial photographs show women picketing outside a building labelled "Al's Bimbo Bar," with signs protesting pornography. As the photo-sequence progresses, it shows a man addressing the camera while he is attacked by the protesters. He begins by saying, "In my fantasy I'm a quiet, sensitive, misunderstood Jewish pimp for sorecovered, starving children from Haiti." The subsequent photos show the man and several of the women engaged in various sex acts with various partners. The captions are written in the first person. The male narrator describes the events six times as his "fantasy."

The reference to Dworkin appears on the top of the fourth page, where the caption states, "While I'm teaching this little shiksa the joys of Yiddish, the Andrea Dworkin Fan Club begins some really serious suck `n' squat. Ready to give up holy wafers for matzoh yet, guys?" (Emphasis in original.) The photos below the caption depict women engaged in cunnilingus with one another. Toward the conclusion of the photo-sequence, a woman identified as "Field Marshal Steinem" arrives. The woman is carrying a book by Gloria Steinem, the well-known feminist, and, to this viewer, resembles her physically. In the final photos, the women attack "Field Marshal Steinem" in a violent sexual assault scene. In the final photo, the man in the photo-sequence, who is the narrator, is clearly identified as the "director" Al Goldstein as he faces the camera and says, "I'll do anything for $10,000—which is what Flynt paid me to take my nose (and finger) out of his behind and direct this fantasy."

Exhibit C is entitled "Porn from the Past" (apparently, a regular feature of Hustler). It portrays a man performing cunnilingus on a woman while he masterbates. The caption reads:

We don't believe it for a minute, but one of our editors swears that this woman in the throes of ecstasy is the mother of radical feminist Andrea Dworkin. He's also positive that the guy performing "Babaloo" on Mama's drums while keeping time with his stick is Robby "the Rock" Ricardo—a distant relative of I Love Lucy's Ricky. Understandably, we gave that editor the day off to watch Leave It to Beaver reruns.

Defendants removed this action from state court to the United States District Court for the District of Wyoming (the "Wyoming federal court"). See Dworkin v. Hustler Magazine, Inc., 611 F.Supp. 781 (D.Wyo.1985) (denying plaintiffs' motion for remand) ("Dworkin I"). The Wyoming federal court dismissed all of the claims under the Constitution and the Wyoming statutes, the only claims asserted by the Wyoming members of NOW. Thus, all plaintiffs, except Dworkin, were dismissed from the case. The Wyoming federal court also dismissed all claims against Inland Empire Periodicals and Park Place Market. Dworkin v. Hustler Magazine, Inc., 634 F.Supp. 727, 731 (D.Wyo.1986) ("Dworkin II"). Subsequently, acting under the compulsion of a writ of mandamus, Hustler Magazine, Inc. v. United States District Court, 790 F.2d 69 (10th Cir.1986), the Wyoming federal court reluctantly granted defendants' motion under 28 U.S.C. § 1404(a) for change of venue to this district. Dworkin v. Hustler Magazine, Inc., 647 F.Supp. 1278, 1283 (D.Wyo.1986) ("Dworkin III"). As explained below, the Court takes the case as the case comes to it and accepts as the law of the case the rulings made by the Wyoming federal court.

Before this Court is the motion of Hustler, Flynt and Flynt Distributing Company, the only remaining defendants ("defendants"), for summary judgment on the claims of libel, invasion of privacy, intentional infliction of emotional injury and "outrage" of Dworkin, the sole remaining plaintiff. This court has jurisdiction under 28 U.S.C. § 1332. Venue is proper under 28 U.S.C. § 1391(a) and § 1404(a).

II. DISCUSSION

Under F.R.Civ.P. 56(c), summary judgment is appropriate if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." In a recent opinion, Judge Sneed aptly summarized the non-moving party's burden to withstand a motion for summary judgment under recent, and controlling, Supreme Court case law:

First, the Court has made clear that if the non-moving party will bear the burden of proof at trial as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element, then summary judgment is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Second, to withstand a motion for summary judgment, the non-moving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (emphasis added). Finally, if the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (emphasis in original). However, it remains the rule that "evidence of the non- movant is to be believed, and all justifiable inferences are to be drawn in her favor." Anderson, 106 S.Ct. at 2513.

A. Choice of Law

In diversity cases, the federal courts must look to the forum state's conflict of laws rules to determine the applicable substantive law. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Where, as here, an action has been transferred, the transferee court must apply the same law that the transferor court would apply. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).

The Wyoming federal court held that a Wyoming state court faced with an interstate tort case, with elements in different jurisdictions, would apply the law of the state in which the cause of action arose. See Dworkin III, 647 F.Supp. at 1281 (citing Duke v. Housen, 589 P.2d 334, 335 (Wyo.), cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979). Although the Wyoming Supreme Court has not ruled on this particular choice of law issue, the Wyoming federal court held that in a case of multistate defamation, a Wyoming state court would hold that the cause of action arose in the state of the plaintiff's domicile, in this case, New York. Id. at 1281-82.¹ That holding, that the defamation claim is governed by New York law, is the law of the case. See United States v. Mills, 810 F.2d 907, 909 (9th Cir.1987) ("in order to maintain consistency during the course of a single case, reconsideration of questions previously decided should be avoided").

The Wyoming federal court did not discuss the law applicable to the claims for invasion of privacy, intentional infliction of emotional injury and outrage, but it is fairly clear that the law of New York, Dworkin's domicile, would also apply to these claims. See Restatement (Second) of Conflict of Laws §§ 145, 153. This inquiry, however, need not detain us because, as will be demonstrated below, the outcome of this motion would be the same no matter which state's law is applied,² especially since defendants claim First Amendment protection for the material in dispute, which is a matter of federal constitutional law in diversity cases. See Koch v. Goldway, 817 F.2d 507, 508-09 (9th Cir.1987) ("Koch II").

B. Defamatory Meaning

Defendants claim that the exhibits at issue here are not actionable as a matter of law because, as clear fiction or...