726 F.2d 245 (5th Cir. 1984), 82-1235, Braun v. Flynt

Docket Nº:82-1235.
Citation:726 F.2d 245
Party Name:Ed BRAUN, et al., Plaintiffs-Appellees, v. Larry C. FLYNT, Defendant, Chic Magazine, Inc., Defendant-Appellant.
Case Date:March 09, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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726 F.2d 245 (5th Cir. 1984)

Ed BRAUN, et al., Plaintiffs-Appellees,


Larry C. FLYNT, Defendant,

Chic Magazine, Inc., Defendant-Appellant.

No. 82-1235.

United States Court of Appeals, Fifth Circuit

March 9, 1984

Rehearing and Rehearing en Banc Denied May 14, 1984.

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[Copyrighted Material Omitted]

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Jack N. Price, Austin, Tex., for defendant-appellant.

Byrd, Davis & Eisenberg, Don L. Davis, Austin, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ and JOLLY, Circuit Judges, and HUNTER [*], District Judge.

E. GRADY JOLLY, Circuit Judge:

This action arising in diversity involves suit by Jeannie Braun, a resident of Texas, against Larry C. Flynt, an Ohio resident, and Chic Magazine, Inc., an Ohio corporation, growing out of the alleged unauthorized, libelous publication in the December 1977 issue of Chic of Mrs. Braun's picture. On special interrogatories the jury found for Mrs. Braun as to defamation and invasion of privacy and returned actual and punitive damages on both grounds. We reverse and remand.


The dominant theme of Chic magazine is "female nudity." According to Chic's editor, the magazine depicts "unchastity in women." The associate editor admitted that the caricatures found in the magazine are "indecent." The particular issue of the magazine with which the case is involved contained numerous explicit photographs of female genitalia. Suffice it to say that Chic is a glossy, oversized, hard-core men's magazine.

One of the opening sections of the magazine, entitled "Chic Thrills," contains brief stories about current "events." In the issue of the magazine in question, twenty-one vignettes were included in "Chic Thrills." Most of these either concerned sex overtly or were accompanied by a photograph or cartoon of an overtly sexual nature.

This is the context in which Mrs. Braun's picture was published. Mrs. Braun was employed by Aquarena Springs amusement park in San Marcos, Texas. Part of Mrs. Braun's job included working in a novelty act with "Ralph, the Diving Pig." In the act, Mrs. Braun, treading water in a pool, would hold out a bottle of milk with a nipple on it. Ralph would dive into the pool and feed from the bottle.

Pictures and postcards were made of Ralph and Mrs. Braun's act, showing Ralph, in good form, legs fully extended, tail curled, diving toward Mrs. Braun, who is shown in profile holding the bottle.

Mrs. Braun had signed a release authorizing Aquarena Spring's use of the picture. The release provided that

I [Jeannie Braun] in consideration of the fact that I am employed and paid by Aquarena, Inc., agree as part of my employment that all photos taken of me can be used by Aquarena Springs and their advertising and publicity agents. It is to be understood that all photographs are to be in good taste and without embarrassment to me and my family.

In May 1977 an editor of the "Chic Thrills" section, Henry Nuwer, went to the amusement park and saw Ralph and Mrs. Braun. He saw the postcard and thought that it should be included in "Chic Thrills." In keeping with Chic's strict policy of obtaining the consent of persons whose pictures appear in "Chic Thrills," Mr. Nuwer called Ms. Jennifer Benton, Aquarena's public relations director, and requested transparencies or negatives of Ralph. Ms. Benton, who was not familiar with Chic, inquired about the nature of the magazine. Mr. Nuwer testified at trial that he told Ms. Benton that Chic was a men's magazine containing men's fashion, travel and humor. According to Mr. Nuwer, "the idea of nudity never came up." According to Ms. Benton, Mr. Nuwer never mentioned that it was a men's magazine but told her that the magazine was a "fashion magazine" with travel articles in it and that it had "the same clientele that would read a Redbook

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or McCall's." 1 Ms. Benton thereafter sent some negatives to Mr. Nuwer and the picture was run, with caption, in the December 1977 issue of Chic. 2

On the same page on which Mrs. Braun's picture appeared were stories about "10 Things That P--- Off Women" with an accompanying cartoon of a woman whose large breasts are partially exposed; a story entitled "Mammaries Are Made of This" about men whose breasts have been enlarged by exposure to a synthetic hormone, with an accompanying cartoon showing a man with large breasts; and a story entitled "Chinese Organ Grinder" about the use of sexual organs from deer, dogs and seals as a Chinese elixir. On the facing page is a picture showing a nude female model demonstrating navel jewelry and an article on "Lust Rock Rules" about a "throbbing paean" to sex written by "the Roman Polanski of rock." The cover of the issue shows a young woman sitting in a chair with her shirt open so as partially to reveal her breasts, one hand to her mouth and the other hand in her tightly-fitting, unzipped pants.

Mrs. Braun learned of her inclusion in Chic on November 23, 1977, when she stopped at a drive-in grocery store in Maxwell, Texas, which lies between San Marcos and her home town of Lockhart, Texas. She walked into the store and a stranger walked up to her and said, "Hey, I know you," explaining that he recognized her from her picture in Chic. Mrs. Braun stated that

... [H]e went and got the magazine. And I stood there because I was really really terrified. I thought something is going to happen, my picture is not in this magazine. My legs were like jelly, I couldn't untrack. I was petrified. And he was thumbing through these pictures. I was raised in a private Catholic school and I had never seen anything like this. And I was terrified, I didn't know what he had in mind. I thought something horrible was going to happen to me. He flipped through that book and my picture was in that book. I didn't believe it. I stood there like a dummy.

Mrs. Braun testified that she "was very upset" and "felt like crawling in a hole and never coming out." She stated that she did not want to return to work, and that she suffered "embarrassment and humiliation." 3


Three weeks after she discovered her picture in Chic, Mrs. Braun filed this lawsuit against Larry Flynt, the publisher, and Chic, alleging invasion of privacy, slander and libel. The Brauns sought $100,000 actual and $1,000,000 punitive damages.

Trial was held April 19-20, 1982, 4 before a six-person jury. The jury returned damages for defamation of $5,000 actual and $25,000 punitive and damages for invasion of privacy of $15,000 actual and $50,000 punitive for a total of $95,000. In answering twelve special interrogatories, 5 the jury found, based on a preponderance of the evidence, that "a false impression as to Mrs.

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Braun's reputation, integrity or virtue" had been created and that Chic knew or should have known that such a false impression was created; that Chic had acted willfully and with reckless disregard for Mrs. Braun's reputation by publishing her picture; that Chic had "published Mrs. Braun's picture in a manner highly offensive to a reasonable person" and that Chic had not received valid consent from Aquarena Springs to publish the picture.

Chic filed timely notice of appeal under 28 U.S.C. Sec. 1291.


We turn initially to the determination of whether Chic's publication of Mrs. Braun's picture with piglet merits protection under the rigorous first amendment standard applied to publications regarding public figures. If such protection were due, as Chic strenuously claims, the verdict below would have to be reversed.

The protection due publishers by the first amendment against claims of libel has progressed from the first "modern" case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), through Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and subsequent cases. It is clear that publications alleged to constitute invasions of privacy merit the same constitutional protections as do publications alleged to be defamatory. Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir.1980); Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974). We hold that Chic's publication of Mrs. Braun's picture is not entitled to constitutional protection under those standards.

New York Times v. Sullivan established that where public officials seek damages for libel there must be a showing of publication with " 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279-80, 84 S.Ct. at 726. In sum, a showing of mere negligence in publishing an untruthful and defamatory article would no longer suffice to support damages in libel actions brought by a public official.

In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Supreme Court extended New York Times v. Sullivan's "actual malice" standard to defamation cases brought by public figures. Various definitions of what constitutes a public figure were offered. Public figures include those who have assumed an "influential role in ordering society" or one who has "relinquished ... [his or her] interest in the protection of [his or her] own good name...." Also, public figures include those who are "intimately involved in the resolution of important public questions, or, by reason of their fame, shape events in areas of concern to society at large." 388 U.S. at 164, 87 S.Ct. at 1996 (1967) (Warren, C.J., concurring in result). In Gertz, which laid to rest consideration of the newsworthiness of the publication in determining the standard of liability, 6 the Court set forth the following rubric:

That designation [as public...

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