Pring v. Penthouse Intern., Ltd., 81-1480

• Decision Date: 05 November 1982
• Docket Number: No. 81-1480,81-1480
• Citation: 695 F.2d 438
• Parties: 8 Media L. Rep. 2409 Kimerli Jayne PRING, Plaintiff-Appellee, v. PENTHOUSE INTERNATIONAL, LTD., a New York corporation, and Philip Cioffari, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 438

695 F.2d 438

8 Media L. Rep. 2409

Kimerli Jayne PRING, Plaintiff-Appellee, v. PENTHOUSE INTERNATIONAL, LTD., a New York corporation, and Philip Cioffari, Defendants-Appellants.

No. 81-1480.

United States Court of Appeals Tenth Circuit.

Nov. 5, 1982.

Rehearing Denied Jan. 11, 1983.

Thomas B. Kelley of Cooper & Kelley, P.C., Denver, Colo., Norman Roy Grutman of Grutman & Miller, New York City (Frank R. Kennedy of Cooper & Kelley, P.C., Denver, Colo., and Carmichael, McNiff & Patton, Cheyenne, Wyo., with them on brief), for defendants-appellants.

G.L. Spence of Spence, Moriarity & Schuster, Jackson, Wyo. (Edward P. Moriarity, Robert P. Schuster, and Robert N. Williams, Jackson, Wyo., with him on brief), for plaintiff-appellee.

R. Bruce Rich, New York City, filed a brief on behalf of amicus curiae Ass'n of American Publishers, Inc., Lauren W. Field and Yvette Miller of Weil, Gotshal & Manges, New York City, of counsel.

Jack C. Landau, Sharon P. Mahoney, and Clemens P. Work, Washington, D.C., filed a brief on behalf of amicus curiae Reporters Committee for Freedom of the Press.

Irwin Karp, New York City, filed a brief on behalf of amicus curiae The Authors League of America, Inc.

Before SETH, Chief Judge, and BREITENSTEIN and LOGAN, Circuit Judges.

SETH, Chief Judge.

This defamation case concerns an article which appeared in defendant's magazine Penthouse. It was written about a "Charlene," a Miss Wyoming at the Miss America contest and about the contest. The defendants argue that the story is a spoof of the contest, ridicule, an attempt to be humorous, "black humor," a complete fantasy which could not be taken literally.

The basic question which had to be resolved at the trial was in two parts--whether the publication was about the plaintiff, that is, whether it was of and concerning her as a matter of identity; and secondly, whether the story must reasonably be understood as describing actual facts or events about plaintiff or actual conduct of the plaintiff.

The first element, the matter of the relationship of the story to the plaintiff as a matter of identity, is well developed in the record and need not be discussed. The jury resolved the matter in Special Verdict Form # 2 and its position is supported by the record. This is a matter to be determined from the story as a whole. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and Afro-American Publishing Co. v. Jaffe, 366 F.2d 649 (D.C.Cir.).

The second element, that the story must reasonably be understood as describing actual facts about the plaintiff or her actual conduct, obviously is quite different from the first. In some opinions it is treated as part of the "of and concerning" requirement. It is really part of the basic ingredient of any defamation action; that is, a false representation of fact. In the case before us this requirement that the story must reasonably be understood to describe actual facts about the plaintiff has become the central issue.

The Supreme Court in Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 held that a false representation of fact was required, but there "no such factual representation can reasonably be inferred." Letter Carriers, of course, had the added ingredient of a labor dispute, but this does not remove the factual statement requirement. In Letter Carriers the Court stated: "Before the test of reckless or knowing falsity can be met, there must be a false statement of fact," citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. This factual statement and "reasonably understood" element is described by the Supreme Court as a constitutional requirement. It is, of course, a basic part of the First Amendment-defamation interaction.

In Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6, the Court considered a newspaper story which referred to the position the plaintiff had taken on matters before the city council as "blackmail." The stories the paper carried were full and accurate. The "blackmail" characterization was made by a speaker at the council meetings. Plaintiff had property the city wanted to buy and plaintiff had other property he wanted to have rezoned. Discussions with the city on both matters were proceeding concurrently. The trial court and the Maryland Court of Appeals viewed the use of the word as charging the crime of blackmail, and since the paper knew plaintiff had committed no such crime it would be held liable for the "knowing use of falsehood." As to this theory the Supreme Court said, "[W]e hold that the imposition of liability on such a basis was constitutionally impermissible--that as a matter of constitutional law, the word 'blackmail' in these circumstances was ... not libel." The Court as a reason for its holding stated in substance that no one could take the word literally and that it referred to plaintiff's "bargaining position." The Court said:

"No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who consider Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime.

"To permit the infliction of financial liability upon the petitioners for publishing these two news articles would subvert the most fundamental meaning of a free press, protected by the First and Fourteenth Amendments." (Footnote omitted.)

See also Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745.

In Letter Carriers, referred to briefly above, the publication included a list of names of persons who had not joined the union. It described them as "scabs" and provided a derogatory description of what a scab was, including "a traitor to his God, his country." The Court made the "statement of fact" requirement, and in substance held that the statements could not be taken literally and no factual representation was present. See also Myers v. Boston Magazine Co., Inc., 380 Mass. 336, 403 N.E.2d 376 (1980).

The article had its setting at a Miss America contest and described Charlene, a Miss Wyoming at the contest, who was a baton twirler. The article began with a description of Charlene with other contestants at a bar during the course of the contest. It quotes a conversation between Charlene and her coach, a man referred to as Corky. The story then switches to the contest as Charlene is about to perform her talent as a baton twirler. She is about to go on stage and her thoughts are described. She thinks of Wyoming and an incident there when she was with a football player from her school. It describes an act of fellatio whereby she causes him to levitate. The story returns to the Miss America stage where she goes on to perform her talent. She there performs a fellatio-like act on her baton which stops the orchestra. The act is concluded and the conversation between Charlene and her coach is described, and conversation with other contestants. She did not reach the finals but she says or thinks she has a "real talent." The third incident is then described. She is at the edge of the stage during the finals while the finalists are at center stage and the finals are under way. Charlene's thoughts are again described and these are how she would have answered the questions put to the finalists had she been one. These thoughts were that she would "save the world" with her real talent with the "entire Soviet Central Committee to prevent a Third World War? Marshall Tito? Fidel Castro?" She would be the ambassador of love and peace. The article then describes an act of fellatio with her coach at the edge of the stage while the audience was applauding the new Miss America in center stage. This fellatio causes the levitation of her coach. It is described that the television cameras were not on the new Miss America but "remained" on Charlene and her coach who was then rising into the air, and the story ends.

The complaint, as amended, refers to these incidents and limits the consequences to:

"The net effect of the aforementioned article was to create the impression throughout the United States, Wyoming and the world that the Plaintiff committed fellatio on one Monty Applewhite and also upon her coach, Corky Corcoran, in the presence of a national television audience at the Miss America Pageant. The article also creates the impression that Plaintiff committed fellatio like acts upon her baton at the Miss America contest."

Plaintiff by her amendment of her complaint to avoid answering interrogatories, as mentioned above, narrowed her cause to the three incidents and limited them to the descriptions with no general implications. This had three consequences: the trial court limited defendants as to what they could question plaintiff about--no sex history; prevented plaintiff from any use of general imputations of immorality; and caused a reliance on the particular descriptions.

The author of the article was the defendant Cioffari, a PhD who was a professor of English at a university in New Jersey.

As described, Greenbelt concerned a factual newspaper account with the word "blackmail" in that context. Here, the underlying event described was the Miss America Pageant, but it was readily apparent, with the extended description of thoughts of Charlene and other indications, that it was all fanciful and did not purport to be a factual account. In this context there are the particular three incidents which are in themselves fantasy and present levitation as the central theme and as a device to "save the world." We have impossibility and fantasy within a fanciful story. Also...