867 F.2d 1188 (9th Cir. 1989), 87-6393, Dworkin v. Hustler Magazine Inc.

Docket Nº:87-6393.
Citation:867 F.2d 1188
Party Name:Andrea DWORKIN; Priscilla Moree; Judith Fouts, Plaintiffs-Appellants, v. HUSTLER MAGAZINE INC., et al., Defendant-Appellee.
Case Date:January 24, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1188

867 F.2d 1188 (9th Cir. 1989)

Andrea DWORKIN; Priscilla Moree; Judith Fouts, Plaintiffs-Appellants,


HUSTLER MAGAZINE INC., et al., Defendant-Appellee.

No. 87-6393.

United States Court of Appeals, Ninth Circuit

January 24, 1989

Argued and Submitted Aug. 5, 1988.

Page 1189

[Copyrighted Material Omitted]

Page 1190

Gary L. Schockey, Spence, Moriarity & Shuster, Jackson, Wyo., for plaintiffs-appellants.

David O. Carson, Cooper, Epstein & Hurewitz, Kirk N. Sullivan, Beverly Hills, Cal., for defendant-appellee.

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

Before HALL and LEAVY, Circuit Judges, and PRO, [*] District Judge.


Andrea Dworkin is a prominent and outspoken feminist author and activist. She is a vocal advocate for the prohibition of pornography, and was one of the principal drafters of the ordinance against pornography enacted by the city of Indianapolis and struck down as unconstitutional. See American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir.1985), aff'd mem., 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986). By her own admission, she is a public figure in this case. Hustler Magazine is a pornographic periodical. Much of its content consists of what we have recently described as "disgusting and distasteful abuse." See Ault v. Hustler Magazine, Inc., 860 F.2d 877, 884 (9th Cir.1988). It is frequently named as a defendant in lawsuits such as this. See generally, e.g., Hustler Magazine v. Falwell, --- U.S. ----, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); Leidholdt v. L.F.P. Inc., 860 F.2d 890, 892 (9th Cir.1988) (citing cases); Ault, 860 F.2d at 877.

Predictably, Dworkin's beliefs and Hustler's editorial viewpoint are inimical to one another, and each party regards the other with hostility. In February, March, and December of 1984, Hustler published features

Page 1191

mentioning Dworkin's name in a derogatory fashion. These features (the "Features") are the basis for the claims asserted in this case.

The February Feature is a cartoon, which, as described in the plaintiffs' complaint, "depicts two women engaged in a lesbian act of oral sex with the caption, 'You remind me so much of Andrea Dworkin, Edna. It's a dog-eat-dog world.' " The March Feature is a ten page pictorial consisting of photographs of women engaged in, among other things, acts of lesbianism or masturbation. Some of the photographs depict obviously staged scenes that include posed violence and phony blood. One photograph, supposedly of a Jewish male, has a caption stating: "While I'm teaching this little shiksa the joys of Yiddish, the Andrea Dworkin Fan Club begins some really serious suck-'n'-squat. Ready to give up the holy wafers for matzoh, yet, guys?" The December Feature was included in the "Porn from the Past" section of the magazine. It shows a man performing oral sex on an obese woman while he masturbates. A portion of the caption states: "We don't believe it for a minute, but one of our editors swears that this woman in the throes of ecstacy is the mother of radical feminist Andrea Dworkin."

Dworkin originally filed her complaint in Wyoming state court. With her as plaintiffs were Judith Fouts and Priscilla Moree, in their individual capacities and, respectively, as representatives of the Wyoming and the Jackson, Wyoming Chapters of the National Organization for Women ("NOW"). Fouts and Moree are also appellants here. The complaint named as defendants Hustler, Larry Flynt (Hustler's publisher), Inland Empire Periodicals, and Park Place Market. Appellants later amended their complaint to add as a defendant Flynt Distributing Company, Inc. (We will refer to Hustler, Flynt, and Flynt Distributing as the "Hustler defendants.") Inland Empire distributes Hustler in Wyoming and Park Place is a Wyoming retailer of the magazine. Moree, Fouts, Inland Empire, and Park Place are Wyoming citizens. The defendants filed a timely petition for removal to the District Court for the District of Wyoming, asserting both federal question and diversity jurisdiction. The removal petition asserted that all four Wyoming residents were fraudulently joined and should not be considered for purposes of determining diversity jurisdiction.

The Wyoming district court found "that removal was proper, based upon both federal question and diversity jurisdiction." Dworkin v. Hustler Magazine, Inc., 611 F.Supp. 781, 788 (D.Wyo.1985). "Although the [Wyoming district court was] not totally convinced that plaintiffs Moree and Fouts [were] properly joined in th[e] action," it did not disregard their claims in finding that diversity jurisdiction existed. Id. at 785. Instead, the Wyoming district court found that Park Place was fraudulently joined, ignored its presence, and therefore found complete diversity. Id. at 787 (the court did not discuss Inland Empire, an unexplained omission).

The complaint contains Dworkin's claims of libel, invasion of privacy, intentional infliction of emotional injury, "outrage," and joint and several liability, as well as a less typical civil rights claim that Hustler and Flynt deprived her of her constitutional rights. On these claims Dworkin seeks recovery of $50 million in actual damages and $100 million in punitive damages. Moree and Fouts claim that publication of the Features: "is tantamount to a direct assault upon the rights and interests" of Moree, Fouts, and the relevant chapters of NOW; "has caused actual damages" to those persons and their associational rights, and causes irreparable harm to those persons; and "makes other women afraid to exercise [political freedoms on behalf of women] for fear of an ugly, pornographic representation of them appearing in such a magazine." Moree and Fouts seek pursuant to this claim damages in an unspecified amount and an injunction preventing Hustler "from using the name or likeness of any member of [the Wyoming or Jackson NOW] or any other woman in any article which is false, known to be false, or, if true, not published with good

Page 1192

intent and for justifiable ends." Finally, all three plaintiffs seek recovery pursuant to an implied private cause of action based on a Wyoming criminal obscenity statute.

Inland Empire and Park Place filed a motion to dismiss for failure to state a claim upon which relief could be granted. The Hustler defendants filed a Rule 12(c) motion for judgment on the pleadings as to Dworkin's constitutional rights count, Moree and Fouts' count, and the obscenity count, also on the ground that the complaint failed to state a claim. The Wyoming district court granted both motions, dismissing the claims against Inland Empire and Park Place, and the three counts attacked by the Hustler defendants' Rule 12(c) motion. Dworkin v. Hustler Magazine, Inc., 634 F.Supp. 727, 731 (D.Wyo.1986).

The Hustler defendants also sought a change of venue from the District of Wyoming to the Central District of California, which the Wyoming district court granted. Dworkin v. Hustler Magazine, Inc., 647 F.Supp. 1278, 1283 (D.Wyo.1986). Prior to the change of venue, the Hustler defendants had filed a motion for summary judgment. This motion had been fully briefed, but was still pending at the time of the transfer. The California district court subsequently granted the motion in a Memorandum Opinion and Order and entered judgment in defendants' favor on all remaining claims. Dworkin v. Hustler Magazine, Inc., 668 F.Supp. 1408 (C.D.Cal.1987).

Appellants filed a notice of appeal taking their appeal from a number of the district court's procedural and substantive rulings. In their brief, however, appellants have abandoned most of their grounds for appeal. At this stage, appellants no longer contest any of the procedural orders. Moreover, appellants no longer contest the dismissal of Inland Empire or Park Place. 1 Accordingly, the only matters before us relate to the substantive merits of the Rule 12(c) dismissal and the summary judgment in favor of the Hustler defendants. Two amicus briefs have been filed in support of appellants, one by Citizens for Decency Through Law, Inc., the other by Gloria Steinem and Susan Brownmiller. The amicus briefs also raise the merits of the district court's substantive decisions.


We review a summary judgment de novo. E.g., Webb Co. v. First City Bank (In re Softalk Publishing Co.), 856 F.2d 1328, 1330 (9th Cir.1988). We also review the district court's decision to grant the Hustler defendants' Rule 12(c) motion de novo. The principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c) is the time of filing. Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog. In this case, the Hustler defendants' Rule 12(c) motion was equivalent to a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted, and de novo review is therefore appropriate. See, e.g., Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 693 (9th Cir.1988) (observing that dismissal "for failure to state a claim upon which relief could be granted" is reviewed de novo, without mentioning Rule 12(b)(6)).


The district court granted summary judgment on Dworkin's libel claims on two independent grounds. First, the court found that the Features could not reasonably be understood as expressing statements of fact about Dworkin, and therefore could not provide a basis for defamation liability. Second, the court found that even if the Features did contain false statements of fact, Dworkin had presented no evidence of malice as required by New York Times v. Sullivan, 376 U.S. 254, 84

Page 1193

S.Ct. 710, 11 L.Ed.2d 686 (1964) ("New York Times malice"), and therefore had failed to establish a genuine issue of material fact with respect to an issue on which she bore the burden...

To continue reading