Harris v. Quadracci

• Decision Date: 15 February 1995
• Docket Number: No. 94-2834,94-2834
• Citation: 48 F.3d 247
• Parties: 23 Media L. Rep. 1296 Lynette HARRIS, Plaintiff-Appellant, v. Betty Ewens QUADRACCI, James Romenesko, Dennis M. Casey, Quad/Creative, Incorporated, and David A. Fryxell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 247

48 F.3d 247

23 Media L. Rep. 1296

Lynette HARRIS, Plaintiff-Appellant, v. Betty Ewens QUADRACCI, James Romenesko, Dennis M. Casey Quad/Creative, Incorporated, and David A. Fryxell Defendants-Appellees.

No. 94-2834.

United States Court of Appeals Seventh Circuit.

Argued Dec. 2, 1994.

Decided Feb. 15, 1995.

Robert Sutton, Milwaukee, WI (argued), for Lynette Harris.

Brady C. Williamson (argued), Robert Dreps, Lafollette & Sinykin, Madison, WI, for Betty Ewens Quadracci, James Romenesko and Quad/Creative, Inc.

Terry E. Mitchell, Mitchell, Baxter, O'Meara & Mathie, Milwaukee, WI, Charles F. Scarlata, Pittsburgh, PA, for Dennis M. Casey.

Before CUMMINGS, BRIGHT, ^* and PELL, Circuit Judges.

BRIGHT, Circuit Judge.

I. Introduction

In this defamation action, Lynette Harris sought damages from James Romenesko, Dennis M. Casey, Betty Ewens Quadracci and Quad/Creative, Inc. for statements made in a Milwaukee Magazine article, entitled "Runaway Twin: Lynette Harris takes her biographer on a frightening journey." The district court ¹ granted summary judgment, dismissing Harris' defamation claim. Harris appeals.

Harris raises three issues on appeal: (1) the district court erred in concluding that as a matter of law she was a limited purpose public figure under the New York Times "actual malice" standard; (2) even assuming the district court had properly characterized Harris as a "public figure," it erred in finding no genuine issue of "actual malice"; and (3) the district court misapplied Wisconsin defamation law in holding her claims against Dennis Casey to be nonactionable. We affirm.

II. Background

In 1990, a jury in federal district court convicted Lynette Harris of income tax evasion. Harris had failed to report as income thousands of dollars received from David Kritzik, a wealthy widower, now deceased, who was partial to the company of young women. The court sentenced Harris to ten months in prison.

In 1991, this court reversed Harris' conviction and ordered that the indictment against Harris be dismissed. The court observed that based on current law the payments such as those made to Harris may qualify either as a gift, taxable under gift tax law to the donor, or as income, taxable to the recipient. As a result of this uncertainty, Harris had no fair warning that her conduct was criminal. See United States v. Harris, 942 F.2d 1125 (7th Cir.1991).

Harris' trial generated a considerable amount of publicity in the Milwaukee area, and to some extent nationally. Prior to her indictment, Harris had become, in her own words, "pretty well-known" in Milwaukee as a model and actress. She had appeared in several Milwaukee newspaper advertisements, on local television, and in Playboy magazine on four different occasions. After her indictment and as the trial approached, Harris' media exposure increased. She began granting numerous interviews and appeared on several nationally-syndicated television shows, including "Larry King Live," "Oprah Winfrey," "Inside Edition" and "Entertainment Tonight."

After her conviction and during the pendency of her appeal, Harris was imprisoned in West Virginia. There she met Dennis Casey, a Pittsburgh journalist. Casey befriended Harris and offered to write a book about her and her twin sister, Leigh Ann Conley. Ms. Conley was separately prosecuted and convicted for the same crimes for which Ms. Harris was prosecuted and convicted. This court reversed her conviction as well.

When this court overturned Harris' conviction, she relocated to Pittsburgh and moved into an apartment rented for her by Casey. During the ensuing months, as Casey purportedly worked on a book about Harris, ² his relationship with Harris soured. Although very sketchy, the record suggests that because Harris wanted a percentage of the proposed book's expected profits and Casey refused, Harris told several individuals, including Casey's wife, that Casey had made sexual demands of Harris. Additional evidence suggests that Harris had called Casey on several different occasions, apparently threatening to ruin Casey's reputation if he did not pay her. The parties disagree as to whether Casey had made any sexual demands of Harris and to whether they had had a sexual relationship, but Harris has acknowledged under oath that she made the threatening phone calls and that these calls could be interpreted as extortionary in nature.

In February 1992, Milwaukee Magazine, a general circulation magazine published in the Milwaukee area, printed an article entitled "Runaway Twin: Lynette Harris takes her biographer on a frightening journey." The article was penned by James Romenesko, a journalist who had been employed at Milwaukee Magazine since 1982. Mr. Romenesko's article begins with background information on the "tax evasion" prosecution of Lynette Harris and her sister, and then proceeds to describe Casey's book idea and, more extensively, his various "experiences" with Harris. Romenesko principally based his article upon several telephone interviews with Casey. Casey had originally contacted Romenesko because Romenesko was familiar with Harris, having already written an article about her in July 1990.

After the "Runaway Twin" article appeared in print, Harris brought this action for defamation against the named defendants, identifying seven passages from the article that Harris contends are false and defamatory. These passages include:

(1) But by the end, says Casey, a Pittsburgh writer and television political analyst, Harris transformed from a cooperative source into a frightening extortionist.

(2) Playboy models Harris and her twin sister, Leigh Ann Conley, were convicted in federal court in 1990 of failing to pay taxes on millions of dollars from Kritzik. A federal appeals court overturned the verdict last year, accepting the twins' argument that money from the octogenarian was a gift and thus not taxable.

(3) Casey was tipped off to the story by a friend who knew he was interested in tax law.

(4) But soon after moving in, the writer says, she [Ms. Harris] demanded 40 percent of the book's profits. When he refused, she spread word around Pittsburgh that the well-known Casey--a married father of three--was making sexual demands of her.

(5) Then, in August, the owner of a restaurant where Casey is a regular customer told him about a new waitress. "Oh," said Casey, "where is she?" The writer looked down the bar and saw Harris, who knew her biographer frequented the eatery. "She was standing there, polishing a knife with a cloth and looking hate at me," he recalls. "I thought, 'This is nuts.' I actually fell into a booth. My knees got weak."

(6) Finally, in October, Harris left town and Casey finished writing the 350-page opus. The book, For Love or Money?, is expected to include transcripts of secret tape recordings of phone conversations between Kritzik and several prominent Milwaukeeans. Casey says the tapes include "possibly incriminating evidence" against the local notables. At press time, four publishers were about to bid on the book.

(7) Of Harris, he says: "She's a victim of society and a victim of herself.... She can be one of the nicest people on earth and she can suddenly transform into one of the worst. I think Lynnette [sic] Harris is the sum total of what men do to beautiful women in our society, and she allowed it to happen because it was her way of dealing with the world."

The district court granted the defendants' summary judgment motion, holding, as a matter of law, that Lynette Harris could satisfy neither the common law nor constitutional elements of her defamation claim. Harris v. Quadracci, 856 F.Supp. 513 (E.D.Wis.1994) (order). This appeal followed.

III. Discussion

A. Media Defendants: James Romenesko, Betty Ewens Quadracci and Quad/Creative, Inc.

1. Limited Purpose Public Figure

Harris' principal contention on appeal is that the district court erroneously characterized her as a "limited purpose public figure" with respect to the Milwaukee Magazine article at issue here. Because the district court established that Harris had "public figure" status, the court required Harris to prove by clear and convincing evidence that James Romenesko, Betty Ewens Quadracci and Quad/Creative, Inc. evidenced "actual malice" in making and publishing defamatory falsehoods. Harris claims that she is a private figure and under Wisconsin law should only have to prove the defendants acted negligently. ³

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court for the first time established constitutional limitations on a state's power to award damages in a libel action brought by a public official against critics of his official conduct. The restrictions imposed prohibited "a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he [could] prove[ ] that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80, 84 S.Ct. at 726.

In subsequent cases, the Supreme Court extended its application of the "actual malice" standard to "public figures," not merely "public officials." Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). According to the Court in Gertz, "[a]bsent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life." Id. at 352, 94 S.Ct. at 3013. On the other hand, "an individual [who] voluntarily injects himself or is drawn into a particular public controversy ... becomes a public figure for a limited range of issues." Id. at 351, 94 S.Ct. at 3013. Accordingly, the Court had delimited two types of "public figures": persons who are public...