860 F.2d 877 (9th Cir. 1988), 87-3684, Ault v. Hustler Magazine, Inc.

Docket Nº:87-3684.
Citation:860 F.2d 877
Party Name:Peggy AULT, Plaintiff-Appellant, v. HUSTLER MAGAZINE, INC.; Flynt Distributing Co., Inc.; Flynt Subscription Company, Inc.; City of Roses Newspaper Co.; Willamette Weekly; Cathy Cheney, Defendants-Appellees.
Case Date:October 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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860 F.2d 877 (9th Cir. 1988)

Peggy AULT, Plaintiff-Appellant,


HUSTLER MAGAZINE, INC.; Flynt Distributing Co., Inc.;

Flynt Subscription Company, Inc.; City of Roses

Newspaper Co.; Willamette Weekly;

Cathy Cheney, Defendants-Appellees.

No. 87-3684.

United States Court of Appeals, Ninth Circuit

October 25, 1988

Argued and Submitted April 7, 1988.

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[Copyrighted Material Omitted]

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Gary L. Shockey, Spence, Moriarity & Schuster, Jackson, Wyo., for plaintiff-appellant.

David O. Carson, Beverly Hills, Cal., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before TANG, FLETCHER and PREGERSON, Circuit Judges.

TANG, Circuit Judge:

In this diversity action, Ault appeals the district court's dismissal of her invasion of privacy, libel, intentional infliction of emotional distress, and trespass and conversion claims against Hustler Magazine, Inc. arising from the magazine's depiction of her in its regular "Asshole of the Month" feature. Ault also appeals the court's dismissal of Larry Flynt and L.F.P., Inc. for lack of personal jurisdiction, and the award of sanctions against Ault and her attorney. We affirm in part and reverse in part.


Peggy Ault founded the Citizens in Action for Clackamas County, Oregon, headquartered in Milwaukie, Oregon, to organize opposition to an adult video-store. As a member of this organization, Ault has participated in picketing adult stores. She is apparently also involved in Citizens for Legislation Against Decadence through which she lobbies the legislature to enact anti-pornography measures. In recognition of her activities Ault was interviewed by the newspaper, Willamette Week, and her photograph accompanied the resulting article.

In its April 1985 issue, Hustler Magazine published an article featuring Peggy Ault as "Asshole of the Month." The article is accompanied by a small photograph of Ault superimposed over the rear-end of a bent-over naked man. The article discusses Ault's anti-pornography activities and characterizes her organization as a "wacko group" engaging in censorship and intimidation tactics with plans to undermine first amendment freedoms. The article portrays Ault as a "tightassed housewife," "frustrated," "threatened by sex," a "fanatic," a "crackpot" and a "deluded busybody" in need of "professional help."

Ault initially sued in state court and the Hustler defendants removed to federal court. The original complaint included claims for intentional infliction of emotional distress, invasion of privacy, libel, outrage, trespass, conversion, interference with first amendment rights, obscenity and joint and

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several liability. After Ault filed a second amended complaint correcting a clerical error (i.e., the inadvertent inclusion of claims from another complaint), the district court dismissed the claims for libel and intentional infliction of emotional distress as barred by the statute of limitations, and the claims for trespass and conversion for failure to state a claim. It dismissed defendants Larry Flynt and L.F.P., Inc. for lack of personal jurisdiction. In her third amended complaint Ault re-alleged all four forms of invasion of privacy and the district court dismissed the complaint. The court also imposed sanctions on Ault and her attorney for filing frivolous claims and awarded attorney fees to Hustler for time spent responding to the erroneous first amended complaint.

The court entered a final judgment dismissing the action on March 9, 1987. Ault timely appeals challenging all rulings of the district court.


I. Libel, False Light, and Intentional Infliction of Emotional Distress

As a threshold matter we must determine whether the Hustler article constitutes the expression of an opinion rather than of factual statements. The distinction is crucial because if a challenged statement is one of opinion rather than fact, then under the first amendment it cannot give rise to a defamation claim. Greenbelt Cooperative Publishing Ass'n Inc. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1542, 26 L.Ed.2d 6 (1970). Opinions are constitutionally privileged because, in the Supreme Court's oft-reiterated view, under the first amendment there is no such thing as a false idea. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). We have explained that "[b]ecause a statement must be false to be actionable defamation, Restatement (Second) of Torts Sec. 558(a) (1977), an opinion is simply not actionable defamation." Lewis v. Time Inc., 710 F.2d 549, 553 (9th Cir.1983). It is likewise clear that a constitutionally privileged statement of opinion cannot form the basis of a claim for invasion of privacy by placing a person in a false light. Time, Inc. v. Hill, 385 U.S. 374, 387-88, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967). Nor can privileged opinion support a claim for intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell, --- U.S. ----, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). Falwell holds "that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true." Id. 108 S.Ct. at 882.

Falwell clearly holds that the...

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