Leidholdt v. L.F.P. Inc

• Decision Date: 26 October 1988
• Docket Number: No. 87-6328,87-6328
• Citation: 860 F.2d 890
• Parties: 15 Media L. Rep. 2201 Dorchen LEIDHOLDT, Plaintiff-Appellant, v. L.F.P. INC.; L.F.P. Inc., dba Larry Flynt Publications; Hustler Magazine, Inc.; Larry C. Flynt; Althea Flynt; Flynt Subscription Company, Inc.; Island Distributing Company, a B.W.I. Company; LFZ, Ltd., a B.W.I. Company; Larry Flynt Distributing Company, Inc.; N. Morgen Hagen; David Kahn; Jim Goode, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 890

860 F.2d 890

15 Media L. Rep. 2201

Dorchen LEIDHOLDT, Plaintiff-Appellant, v. L.F.P. INC.; L.F.P. Inc., dba Larry Flynt Publications Hustler Magazine, Inc.; Larry C. Flynt; Althea Flynt Flynt Subscription Company, Inc.; Island Distributing Company, a B.W.I. Company; LFZ, Ltd., a B.W.I. Company Larry Flynt Distributing Company, Inc.; N. Morgen Hagen David Kahn; Jim Goode, Defendants-Appellees.

No. 87-6328.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1988.

Decided Oct. 26, 1988.

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

David O. Carson, Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before TANG, FLETCHER and PREGERSON, Circuit Judges.

FLETCHER, Circuit Judge:

Dorchen Leidholdt appeals the district court's dismissal, for failure to state a claim, of her diversity action for libel, intentional infliction of emotional distress, and invasion of privacy arising from an article Hustler published about her. She also appeals the district court's indication that it will award sanctions against her and her attorney. We affirm the dismissal of Leidholdt's tort claims; we dismiss the sanctions issue for lack of jurisdiction under 28 U.S.C. Sec. 1291.

BACKGROUND AND PROCEEDINGS BELOW

Dorchen Leidholdt, a New York citizen, is a vigorous opponent of pornography. She is a founding member of the organization Women Against Pornography, has given public speeches against pornography, and has debated its proponents in the national media. By her own description, Leidholdt's activities suffice to make her a "public figure." First Amended Complaint, ER 1, p. 2, p 1. Hearing Transcript, ER 2, 11:7-12.

L.F.P., Inc. (Larry Flynt Publications), a California corporation, owns Hustler Magazine (Hustler). ¹ Hustler regularly includes an "Asshole of the Month" column, in which some personage whose activities Hustler opposes is vilified in graphic terms. The column has frequently elicited libel actions from its subjects. See especially Ault v. Hustler Magazine, 860 F.2d 877 (9th Cir.1988), a factually similar case decided by this panel; see also Dworkin v. Hustler Magazine, Inc., 647 F.Supp. 1278 (D.Wyo.1986), 668 F.Supp. 1408 (C.D.Cal.1987) (after transfer); Spence v. Flynt, 647 F.Supp. 1266 (D.Wyo.1986).

Leidholdt brought this action in Wyoming in federal district court following publication of Hustler's June, 1985 issue featuring her in one of its columns. Column reproduced at ER 1, Exhibit A; Appellant's Br. at 2. The article describes and criticizes some of Leidholdt's views of the relationship between pornography and violence, rails against the threat she presents to Hustler's first amendment freedoms, and criticizes Leidholdt and her fellow antipornographers in vivid scatological terms, employing such phrases as "pus bloated", "sexually repressed", "[h]ating men, hating sex, and hating themselves", and "this frustrated group of sexual fascists." The article was accompanied by a small photograph of Leidholdt's face superimposed over the buttocks of a bent-over naked man.

The case was transferred from the District of Wyoming to the Central District of California, Leidholdt v. L.F.P., Inc., 647 F.Supp. 1283 (D.Wyo.1986), where Hustler moved for dismissal of the complaint for failure to state a claim. Before the hearing Leidholdt voluntarily dismissed some claims for relief, leaving those for libel, invasion of privacy, intentional infliction of emotional harm, and outrage. ² The district court granted the motion to dismiss these remaining claims, apparently on the ground that the Hustler article was constitutionally protected opinion. At the close of the hearing the judge also asked Hustler to submit a declaration of costs and attorney's fees incurred since transfer of the case to California. ER 2 at 56, 11-12. Apparently Hustler had no motion for sanctions pending at the time. ³

Leidholdt timely appealed. We have jurisdiction over the dismissed claims under 28 U.S.C. Sec. 1291.

DISCUSSION

The questions presented on this appeal are first, whether the district court erred in dismissing Leidholdt's tort claims, and second, whether we have jurisdiction to review the court's actions regarding sanctions. The parties also dispute whether California or New York law should govern the tort claims; however, given the grounds we find for affirmance, we need not resolve this choice-of-law issue.

A dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a legal ruling reviewed de novo. Church of Scientology v. Flynn, 744 F.2d 694, 695 (9th Cir.1984). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). All allegations in the complaint must be treated as true. Flynn, 744 F.2d at 696.

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

The threshold question before us is the same as that presented in Ault v. Hustler: whether the Hustler article constitutes the expression of an opinion rather than of allegedly factual statements. For the reasons we set forth in Ault, if the article expresses opinion, then Leidholdt's claims for libel, intentional infliction of emotional distress, and false light invasion of privacy must fail. . Only if the article is not an expression of opinion must we decide whether any of the allegedly false statements are per se defamatory or otherwise actionable.

If Hustler's statements constitute false statements of fact rather than opinion, then Leidholdt, as a public figure, cannot recover for defamation, emotional distress, or false light invasion of privacy unless she also shows that the false statements were made with "actual malice". Hustler Magazine v. Falwell, --- U.S. ----, 108 S.Ct. 876, 882, 99 L.Ed.2d 41 (1988); Time, Inc. v. Hill, 385 U.S. 374, 387-88, 87 S.Ct. 534, 541-42, 17 L.Ed.2d 456 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964). ⁴

We turn first, therefore, to whether Hustler's article about Leidholdt was a constitutionally protected expression of opinion. The distinction between alleged fact and opinion is a question of federal law, reviewable de novo. Lewis v. Time, Inc., 710 F.2d 549, 553, 555 (9th Cir.1983).

This circuit employs a three-part test, first set forth in Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 783-84 (9th Cir.1980), for distinguishing protected opinion from other speech. The factors are:

(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."

Ault, at 881 (citing Lewis, 710 F.2d at 553, and Information Control, 611 F.2d at 783-84). Admittedly these factors overlap and will not cover all situations. The crux, however, is whether a reasonable listener or reader should know the speaker did not intend to be taken literally.

Even without resort to the "facts surrounding the publication", Leidholdt's arguments that certain statements would be understood as defamatory in the sense of making false statements of fact about her are unavailing. It strains credulity to accept that the phrase "pus bloated walking sphincter" imputes to Leidholdt a "loathsome disease," or that by using the phrases "wacko", "vengeful hysteria", "twisted", and "bizarre paranoia" Hustler is asserting that Leidholdt is mentally ill. Hustler's statement that Leidholdt holds an "unfounded belief" that pornography causes rape and violence against women is not libelous because Hustler is entitled to question the conclusions she draws from her studies. Closer to the mark is her argument that the article's statements that she is "sexually repressed", believes "sex is humiliating and painful", and that she hates men, hates sex, and hates herself are false assertions of fact. However, even these statements must be considered in the context of the entire article. As we spelled out in Ault, the facts that Hustler is a magazine known for its pornographic content and is directed to an audience sympathetic to pornography, and that the "Asshole of the Month" column is an especially frequent vehicle for Hustler's lampooning of its critics, all will telegraph to a reader that the article presents opinions, not allegations of fact. See Ault, at 881; Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1017 (1st Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 65, 102 L.Ed.2d 42.

Furthermore, the context of the article makes clear that its content is opinion. Even apparent facts must be allowed as opinion "when the surrounding circumstances of a statement are those of a heated political debate, where certain remarks are necessarily understood as ridicule or vituperation, or both, but not as descriptive of factual matters." Koch v. Goldway, 817 F.2d 507, 509 (9th Cir.1987) (holding mayor's query whether her political opponent was a Nazi war criminal bearing the same name to be constitutionally protected opinion).

As we concluded in Ault, whether Hustler's side of the debate about pornography was presented in print or orally is immaterial. 860 F.2d at 881. While Hustler's remarks were not uttered in live public debate, it nevertheless is an active participant in an ongoing, heated debate on the subject. Readers of the article, recognizing that it...