Dworkin v. Hustler Magazine, Inc.

• Decision Date: 18 June 1985
• Docket Number: No. C85-0111-B.,C85-0111-B.
• Citation: 611 F. Supp. 781
• Parties: Andrea DWORKIN, a citizen of New York; Priscilla Moree, a Wyoming citizen, individually and in her representative capacity of the Jackson, Wyoming Chapter of the National Organization for Women; and Judith Fouts, a Wyoming citizen, individually and in her representative capacity of the Wyoming Chapter of the National Organization for Women, Plaintiffs, v. HUSTLER MAGAZINE, INC., a California corporation; Larry Flynt, a citizen of California, Inland Empire Periodicals, an Oregon corporation; and Park Place Market, a Wyoming corporation, Defendants.
• Court: U.S. District Court — District of Wyoming

611 F. Supp. 781

Andrea DWORKIN, a citizen of New York; Priscilla Moree, a Wyoming citizen, individually and in her representative capacity of the Jackson, Wyoming Chapter of the National Organization for Women; and Judith Fouts, a Wyoming citizen, individually and in her representative capacity of the Wyoming Chapter of the National Organization for Women, Plaintiffs, v. HUSTLER MAGAZINE, INC., a California corporation; Larry Flynt, a citizen of California, Inland Empire Periodicals, an Oregon corporation; and Park Place Market, a Wyoming corporation, Defendants.

No. C85-0111-B.

United States District Court, D. Wyoming.

June 18, 1985.

G.L. Spence, Gary L. Shockey, Spence, Moriarity & Schuster, Jackson, Wyo., for plaintiffs.

John A. Sundahl, Julie Nye Tiedeken, Godfrey & Sundahl, Cheyenne, Wyo., Alan L. Isaacman, Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for defendants.

ORDER DENYING MOTION TO REMAND

BRIMMER, District Judge.

The above-entitled matter came before the Court pursuant to plaintiffs' motion to remand. The Court, having reviewed the pleadings, the briefs, and the evidence offered, and being fully advised in the premises, FINDS and ORDERS as follows:

Plaintiffs originally filed this matter in state court, specifically the Ninth Judicial District, Teton County, Wyoming, and defendants removed it to this Court based on federal question and diversity jurisdiction. Plaintiffs contend that the case was improperly removed, and now ask the Court to remand the case to the state court.

Broken down to its essence, this case involves a suit filed by Andrea Dworkin against Larry Flynt and Hustler magazine alleging libel and defamation. Ms. Dworkin is a New York resident, Mr. Flynt resides in California, and Hustler is a California corporation. However, two Wyoming members of the National Organization for Women, Priscilla Moree and Judith Fouts, as plaintiffs, have also sued, based on the same allegedly libelous material, for interference with their rights as guaranteed under the Wyoming Constitution, and Inland Empire Periodicals, an Oregon corporation, and Park Place Market, Inc., a Wyoming corporation, were joined as defendants for distributing Hustler. In her Ninth Cause of Action, Ms. Dworkin sued Mr. Flynt and Hustler for invasion of her constitutional rights under the First and Fourteenth Amendments to the United States Constitution.

The Court is cognizant of the plaintiffs' choice of the State Court as their forum. If there were any possible way that this Court could respect that choice and remand this case, it would do so. This Court has no need or desire to try another case, such as this one. While it is settled law that the plaintiffs are the masters of their claims, they did not have to state a federal claim if they did not want to. They also cannot use "artful pleading" to avoid removal jurisdiction. C. Wright, Law of the Federal Courts, 4th Ed., p. 215.

As their first ground for removal, defendants contend that Ms. Dworkin's Ninth Cause of Action constitutes a federal question, thus giving the Court jurisdiction over all plaintiffs' claims pursuant to 28 U.S.C. § 1441(b) and (c). Ms. Dworkin's Ninth Cause of Action reads in part as follows:

Andrea Dworkin's Ninth Cause of Action against Defendants Hustler and Larry Flynt

(Invasion of Constitutional Rights)

3. As a citizen of the United States, Andrea Dworkin is guaranteed equal protection of the laws and judicial decisions in this country. She is entitled to protection under the United States Constitution and its amendments on an equal footing with any other citizen or with any other entity, including corporations such as Hustler Magazine, Inc.

4. Specifically, Andrea Dworkin is entitled to the protection of the First Amendment of the United States Constitution to exercise her freedom of speech. Moreover, under the same Constitutional Amendment, she is entitled to protection of the laws to allow her to assemble and to petition the government for redress of grievances.

5. Andrea Dworkin has chosen to exercise her rights of free speech, assembly, and governmental petition through her writings and through her activities to bring about passage of laws which define pornography as a violation of the civil rights of women.

6. The defendant Hustler Magazine, Inc. has, through its publication of the materials in Exhibits A, B and C attached hereto, mounted an intentional, recurring, malicious attack on Andrea Dworkin designed to intimidate Andrea Dworkin into abandoning her rights of free speech, rights to assemble, and rights to petition the government for political change and to chill the exercise of said rights and to still Andrea Dworkin.

7. The First Amendment to the Constitution was never intended to be, nor has it ever been interpreted as, an affirmative weapon against the citizens of the United States. It has formed a shield for pornographers, such as Hustler, to hide behind, but has never been intended as a sword for pornographers to use on citizens such as Andrea Dworkin.

8. The continued malicious attacks on the character of Andrea Dworkin by Hustler under the guise of freedom of speech have amounted to an affirmative campaign on the part of Hustler magazine to thwart the political and social activities of Andrea Dworkin, as well as to silence her exercise of her right to free speech.

A case arises under the Constitution of the United States "if it clearly and substantially involves a dispute or controversy respecting the validity, construction or effect of ... the Constitution ... which is determinative of the resulting judgment." Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1381 (10th Cir.1978), cert. denied 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1058 (1979). Under the plain language of Ms. Dworkin's Ninth Cause of Action, whichever court this case is before will have to decide whether Ms. Dworkin is entitled to the First Amendment rights she claims at the expense of what Mr. Flynt claims are his First Amendment rights.

The court in Graf v. Elgin, Joliet and Eastern Ry. Co., 697 F.2d 771, 775 (7th Cir.1983) stated, "(a) claim that you have been retaliated against for exercising a federal right in this case freedom of speech might raise a federal question substantial enough to confer federal jurisdiction under 28 U.S.C. § 1331." This matter goes one step further. Not only does Ms. Dworkin claim that the defendants retaliated against her for exercising her own constitutional right to speak out against pornography, but also she contends that it is the First Amendment and the courts' interpretations thereof which have allowed the defendants to use claimed rights of free speech to chill the exercise of her rights of free speech. Clearly, construction of the First Amendment will be necessary to resolve this conflict. Since the outcome of this claim will be contingent on the construction of the federal constitution, this matter is a federal question under the Mountain Fuel test.

The Court notes that when faced with a somewhat similar case alleging invasion of constitutional rights, the District of Columbia Circuit concluded that the matter involved a federal question. As the court stated, "Counts II and III of the complaint allege violations of Tuck's and his client's constitutional liberties, thus furnishing the court with federal question jurisdiction." Tuck v. Pan American Health Organization, 668 F.2d 547 (D.C.Cir.1981). Ms. Dworkin alleges the same type of claim, namely, that defendants have violated her constitutional liberty of free speech. The Tuck court also noted that while defendant Pan American Health Organization (PAHO) probably was not a state actor, since the civil rights claim against PAHO was not "obviously frivolous", the claim was not insubstantial for jurisdictional purposes.

Plaintiffs' counsel, in one of his many arguments for remand, stated that the Ninth Cause could not be a federal question because as a civil rights claim it was deficient in failing to allege state action. The Court first notes that if a plaintiff could effectuate remand by pointing out the flaws in her own complaint, in effect arguing for dismissal of that claim, the long established rule that jurisdiction is determined in light of the original complaint, not subsequent amendments, could become meaningless. See Brown v. Eastern States Corp., 181 F.2d 26 (4th Cir.), cert. denied, 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631 (1950); 1A J. Moore, Moore's Federal Practice, 2d Ed. § 0.160(7). Furthermore, the Supreme Court has long held that the fact that a claim might be ripe for a motion to dismiss at a later time does not necessarily affect the question of subject matter jurisdiction. "A claim is insubstantial only if its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974) quoting from Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910).

As far as the Court can ascertain, no circuit court, much less the Supreme Court, has ever ruled on the question of whether there should be a private cause of action for interference with the right to free speech brought about by another party's exercise of what appears to be his equal right to free speech. The Court is not willing to decide, without benefit of briefing by all parties, that Ms. Dworkin cannot state such a claim against defendants. Ms. Dworkin alleges that the only reason defendants are able to engage in such activities is because they hide behind the First Amendment, using it both as a shield and sword against the rights of private, non-media connected citizens. Without commenting on the merits of such a claim, the Court notes that private attempts to "misuse" the law have been previously recognized as...