Herceg v. Hustler Magazine, Inc.

• Decision Date: 20 April 1987
• Docket Number: No. 85-2833,85-2833
• Citation: 814 F.2d 1017
• Parties: , 55 USLW 2656, 13 Media L. Rep. 2345 Diane HERCEG, and Andy V., Plaintiffs-Appellees, Cross-Appellants, v. HUSTLER MAGAZINE, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1017

814 F.2d 1017

94 A.L.R.Fed. 1, 55 USLW 2656, 13

Media L. Rep. 2345

Diane HERCEG, and Andy V., Plaintiffs-Appellees, Cross-Appellants, v. HUSTLER MAGAZINE, INC., Defendant-Appellant, Cross-Appellee.

No. 85-2833.

United States Court of Appeals Fifth Circuit.

April 20, 1987.

David H. Donaldson, Jr., Jack N. Price, Austin, Tex., for defendant-appellant, cross-appellee.

Clinard J. Hanby, Michael M. Essmyer, Haynes & Fullenweider, Houston, Tex., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Southern District of Texas.

Before RUBIN, JOHNSON, and JONES, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

An adolescent read a magazine article that prompted him to commit an act that proved fatal. The issue is whether the publisher of the magazine may be held liable for civil damages.

I.

In its August 1981 issue, as part of a series about the pleasures--and dangers--of unusual and taboo sexual practices, Hustler Magazine printed "Orgasm of Death," an article discussing the practice of autoerotic asphyxia. This practice entails masturbation while "hanging" oneself in order to temporarily cut off the blood supply to the brain at the moment of orgasm. The article included details about how the act is performed and the kind of physical pleasure those who engage in it seek to achieve. The heading identified "Orgasm of Death" as part of a series on "Sexplay," discussions of "sexual pleasures [that] have remained hidden for too long behind the doors of fear, ignorance, inexperience and hypocrisy" and are presented "to increase [readers'] sexual knowledge, to lessen [their] inhibitions and--ultimately--to make [them] much better lover[s]."

An editor's note, positioned on the page so that it is likely to be the first text the reader will read, states: "Hustler emphasizes the often-fatal dangers of the practice of 'auto-erotic asphyxia,' and recommends that readers seeking unique forms of sexual release DO NOT ATTEMPT this method. The facts are presented here solely for an educational purpose."

The article begins by presenting a vivid description of the tragic results the practice may create. It describes the death of one victim and discusses research indicating that such deaths are alarmingly common: as many as 1,000 United States teenagers die in this manner each year. Although it describes the sexual "high" and "thrill" those who engage in the practice seek to achieve, the article repeatedly warns that the procedure is "neither healthy nor harmless," "it is a serious--and often-fatal--mistake to believe that asphyxia can be controlled," and "beyond a doubt-- ... auto-asphyxiation is one form of sex play you try only if you're anxious to wind up in cold storage, with a coroner's tag on your big toe." The two-page article warns readers at least ten different times that the practice is dangerous, self-destructive and deadly. It states that persons who successfully perform the technique can achieve intense physical pleasure, but the attendant risk is that the person may lose consciousness and die of strangulation.

Tragically, a copy of this issue of Hustler came into the possession of Troy D., a fourteen-year-old adolescent, who read the article and attempted the practice. The next morning, Troy's nude body was found, hanging by its neck in his closet, by one of Troy's closest friends, Andy V. A copy of Hustler Magazine, opened to the article about the "Orgasm of Death," was found near his feet.

Invoking the diversity jurisdiction of a federal court, Troy's mother, Diane Herceg, and Andy V. sued Hustler to recover damages for emotional and psychological harms they suffered as a result of Troy's death and for exemplary damages. Their original complaint alleged that Hustler was responsible for Troy's death on grounds of negligence, products liability, dangerous instrumentality, and attractive nuisance. In response, Hustler filed a motion to dismiss the complaint for failure to state a claim. The district court granted Hustler's motion on the basis that Texas law did not support some of the claims and others were barred by the first amendment, but it noted that the first amendment did not bar claims based on incitement and that it was "conceivable that plaintiffs could prove facts showing that Hustler's article was 'directed to inciting or producing' [Troy's death and] was 'likely to incite or produce' the death." It therefore granted leave to the plaintiffs to amend the complaint "to add an allegation of incitement." ¹ The plaintiffs subsequently filed an amended complaint reasserting the claims previously raised and adding an allegation that Troy had read the article and was incited by it to perform the act that resulted in his death. Hustler responded by filing a motion for summary judgment. The district court treated the motion as a motion to dismiss, granted the motion, and dismissed the suit insofar as it was based on any theory except incitement.

The incitement claim was then tried before a jury. Expert witnesses testified on behalf of both the plaintiffs and the defendant about the psychological implications of Troy's behavior and whether the magazine article implicitly advocated the practice it described or was likely to incite readers to attempt the procedure. The jury returned a verdict in favor of the plaintiffs awarding Diane Herceg $69,000 in actual damages and $100,000 exemplary damages and awarding Andy V. $3,000 for the pain and mental suffering he endured as the bystander who discovered Troy's body and $10,000 exemplary damages. Hustler moved for a judgment notwithstanding the verdict or for a new trial, and the plaintiffs moved to amend the judgment to provide for pre-judgment interest. The trial court denied both motions. Hustler appeals, but the plaintiffs do not cross appeal or raise any issue concerning the correctness of the district court order dismissing their other claims.

II.

The constitutional protection accorded to the freedom of speech and of the press is not based on the naive belief that speech can do no harm but on the confidence that the benefits society reaps from the free flow and exchange of ideas outweigh the costs society endures by receiving reprehensible or dangerous ideas. Under our Constitution, as the Supreme Court has reminded us, "there is no such thing as a false idea. However, pernicious an opinion may seem we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." ² We rely on a reverse Gresham's law, trusting to good ideas to drive out bad ones and forbidding governmental intervention into the free market of ideas. One of our basic constitutional tenets, therefore, forbids the state to punish protected speech, directly or indirectly, whether by criminal penalty ³ or civil liability. ⁴

The Supreme Court has recognized that some types of speech are excluded from, or entitled only to narrowed constitutional protection. Freedom of speech does not protect obscene materials, ⁵ child pornography, ⁶ fighting words, ⁷ incitement to imminent lawless activity, ⁸ and purposefully-made or recklessly-made false statements of fact such as libel, defamation, or fraud. ⁹ Whatever the problems created in attempting to categorize speech in such fashion, ¹⁰ the Hustler article fits none of them.

Even types of speech protected generally by the first amendment may be subject to government regulation. Freedom of speech is not an absolute. ¹¹ If the state interest is compelling and the means of regulation narrowly tailored to accomplish a proper state purpose, regulation of expression is not forbidden by the first amendment. The extent of the danger created by a publication therefore is not immaterial in determining the state's power to penalize that publication for harm that ensues, but first amendment protection is not eliminated simply because publication of an idea creates a potential hazard. Whether the Hustler article, therefore, placed a dangerous idea into Troy's head is but one factor in determining whether the state may impose damages for that consequence. Against the important social goal of protecting the lives of adolescents like Troy, the Constitution requires us to balance more than Hustler's right to publish the particular article, subject to the possibility of civil liability should harm ensue, but also the danger that unclear or diminished standards of first amendment protection may both inhibit the expression of protected ideas by other speakers and constrict the right of the public to receive those ideas. ¹²

While the plaintiffs alleged several different bases of liability in their original amended complaint, the issue tried was the imposition of liability on the basis of incitement, and that is the sole basis for the verdict. The question before us therefore is whether, as a matter of law, the language of "Orgasm of Death" may be defined as incitement for purposes of removing that speech from the purview of first amendment protection. If not, the judgment entered on the jury verdict cannot be affirmed even if it is conceivable that, had the case been tried on some other ground, the jury might have reached the same verdict. ¹³

III.

Appellate review of jury findings in cases implicating first amendment rights must remain faithful both to the substantial evidence standard set forth in Rule 52(a) ¹⁴ and the constitutional obligation of appellate courts "to 'make an independent examination of the whole record' in order to make sure 'that the judgment does not constitute a forbidden intrusion on the field of free expression.' " ¹⁵ Although we must accept the jury's fact findings if they are fairly supported by the record, that requirement "does not inhibit an appellate court's power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the...