Ault v. Hustler Magazine, Inc.

• Decision Date: 25 October 1988
• Docket Number: No. 87-3684,87-3684
• Citation: 860 F.2d 877
• Parties: , 15 Media L. Rep. 2205 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.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 877

860 F.2d 877

57 USLW 2319, 15 Media L. Rep. 2205

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.

No. 87-3684.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 7, 1988.

Decided Oct. 25, 1988.

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.

BACKGROUND

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

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.

DISCUSSION

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 opinion privilege applies by barring an emotional distress action brought by a public figure. We have said that the privilege also applies by barring a defamation action brought by a private person. Lewis, 710 F.2d at 553. ¹ Thus we conclude that the opinion privilege bars recovery for intentional infliction of emotional distress whether Ault is a public figure or a private person for first amendment purposes and we do not decide her status.

It is our usual practice to apply the constitutional defense of privileged opinion without first analyzing whether the statements in question are actionable under state law. See Koch v. Goldway, 817 F.2d 507, 508 (9th Cir.1987) (indicating that California courts conflate common law principles and constitutional doctrine on the definition of opinion). It is well settled in this Circuit that the fact or opinion distinction in diversity cases is to be decided as a question of federal law. Id. at 509 (citing Lewis, 710 F.2d at 555). Accord Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1016 (1st Cir.1988), petition for cert. filed, May In general "[s]tatements not themselves factual, and which do not suggest that a conclusion is being drawn from facts not disclosed in the statement, are commonly statements of opinion, not fact." Koch, 817 F.2d at 509. The three-prong test of whether the substance of a publication is fact or opinion is: (1) whether the words can be understood in a defamatory sense in light of the facts surrounding the publication, including the medium by which and the audience to which the statement is disseminated; (2) whether the context in which the statements were made, e.g., public debate or a labor dispute, would lead the audience to anticipate persuasive speech such as "epithets, fiery rhetoric or hyperbole"; and (3) whether the language used is the kind generated in a "spirited legal dispute." Lewis, 710 F.2d at 553 (citing Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 783-84 (9th Cir.1980)).

26, 1988; Ollman v. Evans, 750 F.2d 970, 978 (D.C.Cir.1984) (en banc) (whether a printed statement is protected opinion or an unprotected factual assertion is a matter of law for the court), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985).

Ault argues that under this test: (1) it is clear that any reasonable person would infer a defamatory meaning in these words; (2) the article is not part of a public debate in which a participant can be excused for intemperate language; and (3) nothing in the language of the article gives any indication that this is an editorial or opinion piece.

We agree with the district court's application of the test finding that the article states an opinion. First, although we agree with Ault that the words initially convey a defamatory meaning, when the facts of publication are considered the words assume the character of protected opinion. Publication in Hustler, a magazine known for its pornographic content and directed to an audience sympathetic to pornography, creates a context which robs the statements of defamatory meaning because the statements will be taken as statements of Hustler's opinion of Ault, not as facts about her personal reasons for opposing pornography. We are particularly persuaded to this view because the article appeared in a regular monthly feature routinely devoted to lampooning opponents of pornography and critics of Hustler Magazine. See Fudge, 840 F.2d at 1017 (certain genres of magazine features are so familiar to the audience that a reader reasonably knows they express opinions not facts). Second, we must reject Ault's effort to limit the meaning of "public debate" to an oral, contemporaneous exchange of ideas. We think it is clear that there is a heated and spirited debate on pornography of which this article is a part, and in which epithets, fiery rhetoric and hyperbole are expected. Third, although it is true that the Hustler feature did not include a disclaimer overtly identifying it as opinion, this misses the point of the third prong of the test of opinion. The offending phrases in this article are, unfortunately, representative of the type of language generated in a dispute over such a subject. See Koch, 817 F.2d at 510. (It is unfortunate that the legal category of opinion must be used to describe a statement that is no more than "a vicious slur" but "[b]ase and malignant speech is not necessarily actionable.").

Our holding that the...