Faloona v. Hustler Magazine, Inc., CA 3-79-0056-R.

• Citation: 607 F. Supp. 1341
• Decision Date: 02 May 1985
• Docket Number: No. CA 3-79-0056-R.,CA 3-79-0056-R.
• Parties: Kelly FALOONA and Brandon Faloona, by their next friend, Linda FREDRICKSON, Plaintiffs, v. HUSTLER MAGAZINE, INC., Defendant.
• Court: U.S. District Court — Northern District of Texas

607 F. Supp. 1341

Kelly FALOONA and Brandon Faloona, by their next friend, Linda FREDRICKSON, Plaintiffs, v. HUSTLER MAGAZINE, INC., Defendant.

No. CA 3-79-0056-R.

United States District Court, N.D. Texas, Dallas Division.

May 2, 1985.

Gregory L. Ceshker, Harold E. Vanberg, Jr., Dallas, Tex., for plaintiffs.

John Anderson, David Donaldson, Graves, Doherty, Hearon & Moody, Austin, Tex., for defendant.

MEMORANDUM OPINION

BUCHMEYER, District Judge.

This right of privacy suit involves the publication of nude pictures of the plaintiffs in two issues of Hustler.

1. INTRODUCTION

The plaintiffs, Kelly and Brandon Faloona, are both minors. They are sister and brother, and were only seven and five when the nude photographs were made.¹ They are joined in this suit by their mother, Linda Fredrickson, as "their next friend" and guardian ad litem.² Together, the minor plaintiffs and their mother/next friend make the rather dramatic claim that this:

"... is potentially a landmark case and stands on the threshold of ushering in the formal announcement of a standard of care for skin magazines desiring to use the photographs of nude children, that standard being that they must first obtain court approval. It cannot be left to parents since, in the area of child pornography, it is often the parent who sells the child into this sickness. SICKNESS FOR SALE, p. 20; Hustler, September, 1977, pp. 85-86. Consequently, if parental consent were enough, a large number of our children would be denied a remedy against those who would publish and exploit their photographs for profit." (emphasis added.)³

The nude pictures of the minor plaintiffs were — with the consent of their mother/next friend, Linda Fredrickson — first published in 1977, when Kelly was eleven and Brandon was nine. Although the nude photographs of the plaintiffs merely depicted the bodies and genitals of young children,⁴ there were numerous other pictures and drawings in this publication which were sexually explicit and often erotic — bare breasts and nude bodies of attractive women, female genitalia, male sex organs (both erect and flacid), foreplay (fondling of breasts and genitals), intercourse between a male and female (both implicit and explicit), and various acts of oral sex by men and women (explicit fellatio and cunnilingus). There were also graphic pictures and drawings of group sex, male and female masturbation (including photographs of dildos and vibrators), other acts of sodomy (buggery, bestiality) and sadomasochism, homosexual conduct (lesbians, males, pederasty) — as well as numerous other pictures and drawings of nude children and adolescents (even some of small children and adolescent males and females engaged in sexual intercourse).⁵

However, the plaintiffs do not object to this 1977 publication, and they do not claim that their mother/next friend "sold them into the sickness of child pornography" because their nude pictures appear in it. To the contrary, both the minor plaintiffs and their mother/next friend are very proud of their nude pictures in this 1977 publication — The Sex Atlas — which they admire and which they consider to be a serious and comprehensive educational text on human sexuality published by The Seabury Press in conjunction with The National Sex Forum.⁶ (L. Fredrickson Dep., vol. II at 36, 64).

Indeed, the mother/next friend, Linda Fredrickson, was employed at one time by The National Sex Forum. As a photographer, she even took some of the nude pictures which appear in The Sex Atlas (including those of two naked adolescents). And, before the nude pictures of the plaintiffs were taken, the mother/next friend executed a release giving the photographer, who was head of the audio-visual department at The National Sex Forum, "all rights" in the photos and the permission for him to use them in any manner he saw fit⁷ — and the photographer, in turn, signed an agreement authorizing The National Sex Forum to use the nude pictures of the plaintiffs (and others) both in The Sex Atlas and "in connection with the sale and promotion of the book."

Sales of The Sex Atlas were, in fact, promoted in 1978 — with the approval of The National Sex Forum — by a preview and book review which appeared in the November issue of Hustler and by a long excerpt ("Children, Sex and Society") printed in the December Hustler. A nude picture of both the minor plaintiffs and their mother/next friend was in the November 1978 issue with the book review; nude photographs of the plaintiffs appeared in the December 1978 Hustler. The nude pictures of the plaintiffs in the two Hustler issues are identical to the nude pictures of them which appeared — with parental consent, and without any present objection — in The Sex Atlas in 1977.⁸

However, Hustler is a "hard-core" men's magazine, not a serious or educational study of sexuality like the The Sex Atlas. And it is offensive; it is controversial; and it is just plain raunchy.⁹ Therefore, although the nude pictures of the plaintiffs in Hustler merely depict their bodies and genitals as young children,¹⁰ there were numerous other photographs and drawings in the two Hustler issues which were sexually explicit (but not often erotic) — bare breasts and nude bodies of women (sometimes attractive), female genitalia, male sex organs (only flacid, not erect), foreplay (explicit fondling of breasts, implicit fondling of genitals), and various acts of oral sex, sodomy and sado-masochism (implicit fellatio and cunninlingus, buggery, bestiality).¹¹ However, unlike The Sex Atlas, the two issues of Hustler contain no photos or drawings of adolescents or children engaging in sexual intercourse — although they certainly contain much other material (profanity, violence, scatology, etc.) which is blatantly offensive.¹²

The plaintiffs and their mother/next friend are disgusted by this offensive and sexually explicit material in Hustler;¹³ therefore, they object to the publication of the nude pictures of the plaintiffs in the November and December 1978 issues of Hustler. However, there is no objection to the plaintiffs' nude pictures themselves — since these are identical to the ones in The Sex Atlas — nor is there any objection to the written content of the book review in the November 1978 issue or The Sex Atlas excerpt in the December 1978 Hustler. And, despite their rather dramatic claims (quoted above), the minor plaintiffs do not really assert that their mother/next friend "sold them into the sickness of child pornography" because their nude pictures appear in Hustler.¹⁴

Instead, the plaintiffs object to Hustler itself. That magazine is tasteless; it is offensive; it is raunchy; it is filled with smut and sleaze and slime; and it is devoted primarily to sexual exploitation and disparagement of women. Therefore, the plaintiffs contend that, by publishing their nude photographs in the November and December 1978 issues, Hustler invaded their right to privacy by:

(i) placing the plaintiffs in a false light by intimating that they approved of and participated in the acts and lifestyle depicted throughout Hustler;

(ii) the public disclosure of embarrassing private facts about the plaintiffs; and

(iii) misappropriating the plaintiffs' images for Hustler's commercial advantage.

To support these claims, the plaintiffs and their mother/next friend advance two novel positions. First, they claim that, prior to its publication of any photograph of a nude minor, a "skin magazine" has a duty to obtain judicial consent or to make certain that there is a court order permitting the use of nude pictures of the minor in the "skin magazine." Second, the plaintiffs contend that they may permit their nude photographs to appear in one public context, while prohibiting publication of them in another.

Both of these propositions are baseless. The release executed by the mother/next friend for the publication of the nude pictures of her minor children, the plaintiffs, was valid;¹⁵ no judicial approval was required. The publication of the nude pictures of the plaintiffs in the book review and The Sex Atlas excerpt in Hustler was protected by this release and the photographer's agreement with The National Sex Forum. Moreover, the publication of these nude pictures did not improperly disclose private facts about the plaintiffs, put them in a "false light," or appropriate their images for Hustler's commercial advantage.

For these reasons and the others discussed below — and because there are no genuine issues of any material facts — the motion for summary judgment of the defendant, Hustler Magazine, is GRANTED and the plaintiffs' motion for summary judgment is DENIED.¹⁶

2. FACTUAL BACKGROUND

a. The Plaintiffs and Their Mother Next Friend

While they were attending the University of Florida in Gainesville, Linda Fredrickson married Gerald Faloona. She earned a Bachelor of Science in Nursing, specializing in pediatrics, diabetes, and research. He graduated with a Ph.D. in Biochemistry. (LF, vol. I at 7-12).¹⁷

While they were still living in Gainesville, their first child — Kelly Faloona — was born on June 16, 1966. Shortly thereafter, the family moved to Dallas, where Dr. Faloona accepted a teaching position at Bishop College, and Linda Fredrickson Faloona continued her nursing career. On March 27, 1968, their second child — Brandon Faloona — was born in Dallas. (LF, vol. I at 7-9).

Sometime during 1971, the Faloonas separated. The children and their mother moved to San Francisco; the father remained in Dallas, where he has lived ever since. (LF, vol. I at 68). A California court granted the Faloonas a final divorce on December 27, 1971, awarding the mother, Linda Fredrickson, the "care, custody, and control" of both Kelly and Brandon, subject to the father's reasonable visitation rights. (Def. Exh. 1). At this time, Linda Fredrickson resumed her maiden name. (LF, vol. I at 3). Kelly was then five, and Brandon was three.

b. San Francisco: 1971-19...