Grimsley v. Guccione

• Decision Date: 29 August 1988
• Docket Number: Civ. A. No. 87-T-1414-S.
• Citation: 703 F. Supp. 903
• Parties: Lois GRIMSLEY, Plaintiff, v. Bob GUCCIONE and Penthouse International, Ltd., Defendants.
• Court: U.S. District Court — Middle District of Alabama

703 F. Supp. 903

Lois GRIMSLEY, Plaintiff, v. Bob GUCCIONE and Penthouse International, Ltd., Defendants.

Civ. A. No. 87-T-1414-S.

United States District Court, M.D. Alabama, S.D.

August 29, 1988.

Warren Rowe, J.E. Sawyer, Jr., Rowe, Rowe & Sawyer, Enterprise, Ala., for plaintiff.

James C. Barton, Hollinger F. Barnard, Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, Ala., for defendants.

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

Plaintiff Lois Grimsley has brought this lawsuit charging, among other things, that an article published in Penthouse Magazine defamed her, in violation of Alabama law. She has named as defendants Penthouse International, Ltd., which owns the magazine, and Bob Guccione, the magazine's editor and publisher. This court's jurisdiction has been properly invoked pursuant to 28 U.S.C.A. §§ 1332 (diversity jurisdiction), 1441 (removal jurisdiction).

Now before the court is the defendants' motion for summary judgment. The court concludes, for reasons that follow, that the motion should be granted.

I.

In February 1986, Lois Grimsley, a forty-six-year-old security inspector at Fort Rucker, Alabama, unexpectedly gave birth to a second son. A reporter from the Enterprise Ledger, a local newspaper, interviewed Grimsley shortly after the birth. Grimsley provided details about the birth and posed for a photograph. An article about the birth appeared on the Enterprise Ledger's front page the following day. After the Associated Press picked up the story, it also appeared in several other newspapers and at least one magazine. Neither the initial publication, nor republication of slightly edited versions of the original article, bothered Grimsley in any way. Shortly after, however, Grimsley did suffer severe emotional problems growing out of her deep concern that her son may have been harmed from lack of prenatal care, or even injured during the unexpected birth.

It was not until July 1986, when a synopsis of the article appeared in Penthouse, the self-proclaimed "International Magazine for Men," that Grimsley found the article objectionable. The article appeared in the magazine's "Hard Times" section, which is described in the magazine as "A compendium of bizarre, idiotic, lurid, and ofttimes witless driblets of information culled from the nation's press." The following is a reproduction of the entire article:

On December 8, 1987, after Penthouse refused to retract the article, Grimsley filed suit in the Circuit Court of Coffee County, Alabama, claiming that the article is defamatory. After the defendants removed the lawsuit to this court based on diversity of citizenship, Grimsley amended her complaint to add claims for intentional infliction of emotional distress and invasion of privacy.

The defendants have now moved for summary judgment. They contend that they are entitled to summary judgment as a matter of state law. Furthermore, they contend that, given the backdrop of the first amendment as applied to the facts of this case, their publication is constitutionally protected.

II.

The court analyzes each of Grimsley's claims separately below, but the standard for summary judgment is the same for each claim. To prevail on a motion for summary judgment, the moving party must show, first, the absence of a genuine issue of material fact, and, second, entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(c). Where the record taken as a whole, with the evidence viewed in the light most favorable to the non-moving party, could not lead a rational trier of fact to find for that party, there is no genuine factual issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Tippens v. Celotex Corp., 805 F.2d 949, 952-53 (11th Cir.1986).

Additionally, insomuch as this matter is based upon diversity jurisdiction, Alabama law is applicable. See Keller v. Miami Herald Publishing Co., 778 F.2d 711, 714 (11th Cir.1985).

A. Defamation

A plaintiff may prevail on a defamation claim only if the evidence establishes that the defendant made a defamatory and false statement concerning the plaintiff. Foley v. State Farm Fire and Casualty Ins. Co., 491 So.2d 934, 937 (Ala. 1986); Harris v. School Annual Publishing Co., 466 So.2d 963, 964 (Ala.1985); Liberty Loan Corp. v. Mizell, 410 So.2d 45, 49-50 (Ala.1982); Restatement (Second) of Torts § 558 (1977).

A communication is considered defamatory if it tends to harm the reputation of another so as to lower her in the estimation of the community or to deter third persons from associating or dealing with her. Harris, 466 So.2d at 964. Communications are often considered defamatory if they tend to expose another to hatred, ridicule, or contempt. Restatement (Second) of Torts § 559, Comment b (1977); id., § 566, Comment d. Grimsley contends that the defendants defamed her by exposing her to ridicule. The court need not, however, reach the issue of whether the defendants actually ridiculed Grimsley, because the evidence is clear that the Penthouse article was not false in any material way.

With regard to the article's headline and editorial comment, the court concludes that they cannot fairly be characterized as false. In a case very similar to this one, the First Circuit Court of Appeals observed:

We think that Penthouse's "Hard Times" column ... is an example of a well-recognized genre: articles or fragments gleaned from the nation's press, appearing under satirical headlines penned by the magazine's editors and followed by the editors' wry comments. Sometimes the editors' barbs are directed at the substance of the story, sometimes the manner in which it was covered or not covered, and sometimes at bizarre and unfortunate typographical errors. This genre is by now common enough, across a broad spectrum of publications, that the average reader understands that the headline is the editors' ironic comment upon, rather than a literal representation of, what appears in the story reprinted from another source. Here, the editors' use of this genre, and their closing comment ... clearly signalled the reader that the headline ... was satirical opinion rather than serious fact.

Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1017 (1st Cir.1988), petition for cert. filed, 56 U.S.L.W. 3834 (June 7, 1988) (No. 87-1940).

The Fudge court's observation is equally applicable to the headline about which Grimsley complains. No reasonable person could have understood it to state that a hemorrhoid was born. Cf. Harris, 466 So.2d at 965. Moreover, when considering the headline in light of the entire story dedicated to Grimsley, there is no question that the headline was merely an ironic comment upon that which appears in the text of the story.¹See Fudge, 840 F.2d at 1017. Cf. Janklow v. Newsweek, Inc., 788 F.2d 1300, 1304 (8th Cir.) (en banc), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986). The article explains the misdiagnosis of Grimsley's condition, the photograph clearly reveals that Grimsley gave birth to a child, and the editorial comment at the bottom of the article, "So that's where babies come from," reinforces that fact. Moreover, it is clear that the editorial comment at the conclusion of the story is not a part of the story and is not a factual assertion, but is rather a comment by the Penthouse editor on the story itself. See Fudge, 840 F.2d at 1019.²

Finally, the text of the article is accurate in every material way. Grimsley identified only one factual error, the statement that she is "a Florida woman," and she does not claim that this error defamed her. Any other factual errors were similarly harmless and immaterial. In short, the potentially defaming fact—that Grimsley gave birth to a child without even realizing that she was pregnant—admittedly was true. Grimsley, therefore, may not recover on her defamation claim.³

B. Outrage

The defendants are also entitled to summary judgment on Grimsley's claim for intentional infliction of emotional distress. This tort, which is better known in Alabama as the tort of "outrage" or "outrageous conduct," is recognized by Alabama courts as occurring when "one who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another." American Road Service v. Inmon, 394 So.2d 361, 365 (Ala.1980).⁴ The tort consists of four basic elements: (1) that the defendant knew or should have known that its conduct was likely to result in emotional outrage; (2) that the conduct was extreme and outrageous; (3) that the defendant's actions were the cause of the plaintiff's distress; and (4) that the emotional distress suffered by the plaintiff was "severe." U.S.A. Oil, Inc. v. Smith, 415 So.2d 1098, 1100 (Ala. Civ.App.), cert. denied sub nom. Ex parte Smith, 415 So.2d 1102 (Ala.1982). Grimsley's burden of proving the existence of such a tort is a "heavy" one. Surrency v. Harbison, 489 So.2d 1097, 1105 (Ala.1986). The determination as to whether a statement or action is sufficiently extreme or outrageous to support a cause of action for outrageous conduct is, in the first instance, one for the trial court to make as a matter of law. Logan v. Sears, Roebuck & Co., 466 So.2d 121, 123 (Ala.1985); Inmon, 394 So.2d at 368.

For conduct to be "extreme" under Alabama law, it must be "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Inmon, 394 So.2d at 365. Mere insults, indignities, threats, or annoyances are not sufficient to give rise to a tort of outrage. Logan, 466 So.2d at 123-24; Inmon, 394 So.2d at 364-65. Applying these principles, the court must conclude that Penthouse's republication of the tale of Grimsley's rather surprising delivery simply does not constitute such egregious behavior as to go beyond all possible bounds of decency.⁵ After all, Grimsley had...