Fitzgerald v. Penthouse Intern., Ltd., 81-2170

• Decision Date: 11 November 1982
• Docket Number: No. 81-2170,81-2170
• Citation: 691 F.2d 666
• Parties: 8 Media L. Rep. 2340 James W. FITZGERALD, Appellant, v. PENTHOUSE INTERNATIONAL, LTD.; Meredith Printing Corporation; Meredith Corporation; Bob Guccione; and Steve Chapple, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 666

691 F.2d 666

8 Media L. Rep. 2340

James W. FITZGERALD, Appellant, v. PENTHOUSE INTERNATIONAL, LTD.; Meredith Printing Corporation; Meredith Corporation; Bob Guccione and Steve Chapple, Appellees.

No. 81-2170.

United States Court of Appeals Fourth Circuit.

Argued June 9, 1982.

Decided Oct. 13, 1982.

Rehearing Denied Nov. 11, 1982.

William McKamey, Bethesda, Md. (George Seymour Morgan, Bethesda, Md., on brief), for appellant.

Norman Roy Grutman, New York City (Grutman & Schafrann, New York City, William H. Engelman, John Philip Miller, Kaplan, Heyman, Greenberg, Engelman & Belgrad, P. A., Baltimore, Md., on brief), for appellees.

Before BUTZNER, WIDENER and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

This is the second appeal from the district court by the plaintiff, James W. Fitzgerald. The district court's first disposition of this case was a grant of summary judgment in favor of the defendants, Penthouse International, Ltd., Meredith Printing Corp., Meredith Corp., Bob Guccione, and Steve Chapple. We reversed, finding that the publication was capable of defamatory meaning and that there was a genuine question of fact as to the truth of the allegations included in the publication. Fitzgerald v. Penthouse International, Ltd., 639 F.2d 1076 (4th Cir. 1981). Upon remand, the district court again granted summary judgment for the defendants, finding as a matter of law that plaintiff Fitzgerald was a public figure for the purposes of this controversy and that the defendants did not act with malice. 525 F.Supp. 585. We affirm the district court's holding that Fitzgerald was a public figure with respect to the topic of the Penthouse article. We hold, however, that there was a substantial question of material fact as to whether any of the defendants acted with actual malice. The judgment of the district court, therefore, is reversed in part.

I. Public Figure

The topic of the article that is the subject of this action was the use of dolphins for military purposes. ¹ The plaintiff contends that there was no public controversy concerning the use of trained dolphins by the military and that he did not thrust himself into the public eye with respect to this subject. After a thorough review of the evidence in the light most favorable to the plaintiff, the district court held that a public controversy existed and that the plaintiff was a public figure for the purposes of that controversy. We agree with the holding of the district court.

The factors to be considered in determining whether an individual is a public figure for the purposes of a certain issue have evolved in recent decisions of the United States Supreme Court. See Note, Constitutional Protection of Critical Speech and the Public Figure Doctrine: Retreat by Reaffirmation, 1980 Wis.L.Rev. 568 (1980). The district court appropriately listed the five requirements for a limited purpose public figure as: (1) the plaintiff had access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in a public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statements; and (5) the plaintiff retained public figure status at the time of the alleged defamation.

Even though a person is not a public official or general public figure, an individual may have cast himself into the forefront of a public issue so as to become a limited public figure. Gertz v. Robert Welch, 418 U.S. 323, 345, 94 S.Ct. 2997, 3009-3010, 41 L.Ed.2d 789 (1974). There was abundant evidence that the public debate over the military applications of trained dolphin technology made this issue a matter of public controversy. Cf. Wolston v. Reader's Digest Assoc., Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979) (plaintiff's failure to appear before grand jury and contempt citation in an espionage case did not engage the attention of the public adequately for public controversy finding). In this case, the national press had covered the use of dolphins in Vietnam from 1970 to 1972. In 1973, the television show "60 Minutes" carried a segment on the military use of dolphins, in which the plaintiff was interviewed. In his deposition, the plaintiff virtually acknowledged that there was public interest in the military use of dolphins and that there were different views on the propriety of using dolphins as weapons. The topic has been addressed in books, magazines and newspapers; frequently being accompanied by sensationalized headlines. The use of dolphins by the military is a legitimate topic of public concern and was, in fact, openly discussed by members of the general public. See Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1297 (D.C.Cir.) cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). The issue goes beyond the mere use of public funds. See Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). Moral and humanitarian concerns entered the debate over the use of dolphins for military purposes.

The next question is whether the plaintiff is a public figure with respect to the topic of the publication. When considered in the light most favorable to the party against whom summary judgment was granted, the facts of this case establish that the plaintiff was a public figure for a limited purpose. The plaintiff researched the military application of dolphin technology for the United States Navy. He has lectured publicly on the subject and published several articles and reports on dolphin technology. As part of his private business, the plaintiff published brochures which refer to the use of dolphins in anti-submarine warfare. In February 1973, the plaintiff appeared on a segment of the "60 Minutes" television program and discussed the military application of dolphin technology. Although the plaintiff contends that his purpose for appearing on the program was to promote his non-military dolphin technologies, only the portion of his interview that related to military applications was aired. The plaintiff was also interviewed in March 1976 for an investigative article on the military and covert use of dolphin technology. See Kessler, Navy Uses Dolphins for Spying, Disgruntled Scientist Testifies, Newsday, Apr. 10, 1976.

The facts reveal that the plaintiff thrust himself into a position of special prominence with respect to the controversy. He sought pecuniary gain through the military and non-military use of dolphin technology and sought to influence the outcome of the controversy through his brochures and public statements. The public controversy existed before and after publication of the alleged defamatory article by Penthouse in June 1977. The plaintiff had been interviewed for another article in the previous year, so his public figure status had not grown stale. Furthermore, he had continuous access to the media up to the time of publication of the Penthouse article. See Constitutional Protection of Critical Speech and the Public Figure Doctrine: Retreat by Reaffirmation, supra, at 590. Compare Curtis Publishing Co. v. Butts, 388 U.S. 130, 154-55, 87 S.Ct. 1975, 1991-1992, 18 L.Ed.2d 1094 (1967), with Hutchinson v. Proxmire, 443 U.S. 111, 134-36, 99 S.Ct. 2675, 2687-2688, 61 L.Ed.2d 411 (1979). Additionally, the fact that Parade Magazine printed an article on the military application of dolphin technology on September 10, 1978, shows that the controversy into which the plaintiff thrust himself was continuing. As an acknowledged expert on this issue, the plaintiff's views still were of value to the media after publication of the Penthouse article.

Once the pertinent facts are found or, as here, there is no substantial question of material fact in contention, the issue of whether the plaintiff is a public figure is a question of law for the court. See Rosenblatt v. Baer, 383 U.S. 75, 88 n.15, 86 S.Ct. 669, 677 n.15, 15 L.Ed.2d 597 (1966); cf. Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), and Wolston v. Reader's Digest Assoc., Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979) (in both cases the Supreme Court accepted the findings of fact of the trial courts but reached different conclusions of law from the lower courts as to whether the plaintiffs were public figures).

We conclude that the plaintiff is a limited-purpose public figure under the guidelines prescribed by the Supreme Court. See Wolston v. Reader's Digest Assoc., Inc., 443 U.S. 157, 166-69, 99 S.Ct. 2701, 2706-2708, 61 L.Ed.2d 450 (1979). In order to recover, therefore, the plaintiff must prove that the defendants acted with actual malice in publishing the Penthouse article. New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).

II. Actual Malice

The plaintiff does not challenge the portions of the Penthouse article that were excerpted from the "60 Minutes" interview or other published articles. After detailing the plaintiff's connection with the Central Intelligence Agency and the past military use of dolphin technology, however, the article continued:

Fitzgerald continued his own Florida operation. He even made overtures, possibly with CIA and Navy knowledge, to sell dolphin torpedoes or "open-ocean weapons systems" to Mexico, Peru, Colombia, Chile, Argentina, and Brazil. This private merchandising astounded one of Fitzgerald's associates, who observed: "The work in Key West had been top secret, with only a small handful of people in the whole country knowing of its existence, not to mention its purpose." Yet Fitzgerald wanted to make some fast bucks on the side by turning small countries into "instant naval powers." The Pentagon couldn't possibly object for fear of exposing its whole operation.

As we held in Fitzgerald v. Penthouse International, Ltd., 639 F.2d 1076 (4th Cir. 1981), this passage is capable of being read to accuse...