Simonson v. United Press Intern., Inc., 80-2708

• Decision Date: 16 July 1981
• Docket Number: No. 80-2708,80-2708
• Citation: 654 F.2d 478
• Parties: 7 Media L. Rep. 1737 Archie E. SIMONSON, Plaintiff-Appellant, v. UNITED PRESS INTERNATIONAL, INC., and The Associated Press, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 478

654 F.2d 478

7 Media L. Rep. 1737

Archie E. SIMONSON, Plaintiff-Appellant, v. UNITED PRESS INTERNATIONAL, INC., and The Associated Press Inc., Defendants-Appellees.

No. 80-2708.

United States Court of Appeals, Seventh Circuit.

Argued June 3, 1981.

Decided July 16, 1981.

Richard H. Schulz, Petrie, Stocking, Meixner & Zeisig, Milwaukee, Wis., for plaintiff-appellant.

Evan J. Cutting, Baker & Hostetler, Cleveland, Ohio, Andrew O. Riteris, Michael, Best & Friedrich, Milwaukee, Wis., for defendants-appellees.

Before SWYGERT and CUMMINGS, Circuit Judges, and GRANT, Senior District Judge. ^*

SWYGERT, Circuit Judge.

The issue on appeal is whether the district court properly dismissed upon summary judgment plaintiff-appellant Archie E. Simonson's defamation of character suit against defendants-appellees, United Press International (UPI) and Associated Press (AP). We affirm the judgment of the district court, 500 F.Supp. 1261.

On April 10, 1978, Simonson, a former county court judge for Dane County, Wisconsin, filed a complaint against UPI and AP alleging that the wire services defamed his character and injured him in his occupation in certain of their wire service dispatches issued on May 25 and 26, 1977. The reports concerned a juvenile disposition hearing presided over by then-Judge Simonson on May 25, at which Simonson was called upon to sentence a fifteen-year-old youth, who had previously pleaded no contest to a charge of second-degree sexual assault. ¹ The assault had taken place in an area high school stairwell and aroused interest and concern in the community. During the hearing, Dane County assistant district attorney Meryl Manhardt recommended the youth be placed in a juvenile facility. The following colloquy then took place between Manhardt and Simonson:

Simonson: (Y)ou are saying that I should be responsive to the community in what their needs and wishes are. Well, how responsive should I be? Should I adopt a double standard? This community is well known to be sexually permissive; look at the newspapers, look at the sex clubs, the advertisements of sex, the availability of it through your escort services, the prostitutes, they are being picked up daily. Go down State Street and the University area. I used to see girls clothed like that and I had to pay a lot of money to go into the south side of Chicago to view what I see down on State Street today. Even in open court we have people appearing women appearing without bras and with the nipples fully exposed and they think it is smart and they sit here on the witness stand with their dresses up over the cheeks of their butts and we have this type of thing in the schools. So, is that the attitude of the community? Am I supposed to be responsive to that? Are we supposed to adopt a double standard? Is this community then exhibiting the sex in the movies, in the sex stores we now have on State Street up around in the square, in the shows? I'm talking about the bars and the taverns where it is readily available, The Dangle Lounge, The Whiskey, wherever else they do their thing; down here on Williamson Street, Ms. Brew's, and the like. It is readily available. It is really wide open and are we supposed to take an impressionable person 15 or 16 years of age who can respond to something like that and punish that person severely because they react to it normally?

What is the attitude of this community and what are their mores, what does exist? I know there is a group that has recently been attempting to clean it up. For them I think it is going to be an uphill fight because we haven't hit rock bottom yet but we will someday and then the pendulum will swing the other way and how are you going to deter acts like this absent some explanation of these influencing environmental factors. What response do you have?

Manhardt: Your Honor, with all due respect, I find your remarks about women's clothing particularly sexist.

Simonson: You bet it is. I can't go around walking exposing my genitals like they can the mammary glands.

Manhardt: You are reflecting the general theory that a woman provokes an assault and I cannot accept that idea.

Simonson: It sure raises a lot of interest in my mind from time to time.

Manhardt: We are not talking about a consensual sex act, we are not talking about anything between adults, we are not talking about shows or magazines; we are talking about a personal assault and that's admitted to in the plea of no contest that was entered.

Simonson: It is one thing to enter a plea on a charge like this and another thing to address myself to a dispositional case. It is absolutely whether it is in a criminal setting or juvenile disposition taking into consideration the circumstances surrounding the act.

Manhardt: There was an assault without consent on a 16 year old girl.

Simonson then sentenced the delinquent fifteen-year-old youth to one year at a state reformatory, suspended the sentence, and directed that the youth participate in a home community treatment program.

Anita Clark, a reporter for the Wisconsin State Journal who was present at the hearing, wrote an article relating Judge Simonson's comments and disposition of the delinquent youth. Based on her article, UPI and AP wrote national dispatches reporting the hearing. ² Simonson's comments on provocative dress and sexual permissiveness and their effect on a male's sexual response, along with the relatively light sentence he imposed, received wide publicity in the news media and were met by immediate outrage in the community, which eventually led to Judge Simonson's removal from office in a recall election.

Eleven months after the hearing, Simonson filed his defamation suit against UPI and AP in the United States District Court for the Eastern District of Wisconsin, asking for $1,750,000 in damages. On March 3, 1980, the wire services filed motions for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The district court on October 28, 1980 granted defendant's motions. Appellant Simonson filed a notice of appeal on November 25, 1980.

Simonson contends that the district court erred by finding the following:

1. The wire services' news dispatches were "true in substance; "

2. There is no genuine issue as to material fact of "actual malice; "

3. The wire services' news dispatches are privileged as "true and fair" accounts of a judicial proceeding under Wisconsin law; ³

4. Wisconsin's retraction statute applies to appellees, UPI and AP, and is a condition precedent to appellant Simonson's defamation suit. ⁴ Simonson failed to comply with the statute.

Any of these findings would support the granting of summary judgment. Because we agree with the district court that the dispatches were "substantially true," we affirm the judgment in favor of defendants.

Under Wisconsin tort law, Simonson's defamation action cannot succeed unless it is shown that the alleged defamatory statements were both defamatory and false. See, e. g., Schaefer v. State Bar of Wisconsin, 77 Wis.2d 120, 252 N.W.2d 343 (1977). See 3 Restatement (Second) of Torts § 581 A, Comments a-1 at 235-37 (1977). In addition, because the district court found Judge Simonson to be a "public official" within the New York Times v. Sullivan ⁵ doctrine, he must also prove the wire services acted with "actual malice" in writing their dispatches. To defeat a motion for summary judgment, however, Simonson only has to present, among other things, some evidence of falsity and of malice. He has failed to meet even that slight burden.

On appeal, Judge Simonson contends to be false only two words used in the wire services' dispatches. Both the UPI dispatch of May 26, 1977 and the AP dispatch of May 25, 1977 referred to the sexual assault in the high school as a "rape." UPI's dispatch also used the word "ruled" when referring to the manner in which Judge Simonson made his statements from the bench concerning the normal sexual responses of young males. ⁶ Judge Simonson challenges the use of both these words.

It is sufficient to note that "rape" as defined by common usage ⁷ is incorporated into second-degree sexual assault under Wisconsin law: "Sexual...