Spence v. Flynt

• Decision Date: 08 August 1991
• Docket Number: 89-18,Nos. 89-17,s. 89-17
• Citation: 816 P.2d 771
• Parties: , 19 Media L. Rep. 1129, 19 A.L.R.5th 911 Gerry L. SPENCE and the Spence Foundation for People's Attorneys, Inc., Appellants (Plaintiffs) Cross-Appellees, v. Larry FLYNT; Althea Flynt; L.F.P., Inc., a California corporation; Larry Flynt Publications; Hustler Magazine, Inc., a California corporation; Flynt Distributing Company, a California corporation; Flynt Subscription Company, a Nevada corporation; LFZ, Ltd., a B.W.I. corporation; Island Distributing, Inc., a B.W.I. corporation; David Kahn; Jim Goode, Doug Oliver; N. Morgen Hagen; Lonn M. Friend; Inland Empire Periodicals, an Oregon corporation; and Park Place Market, Inc., a Wyoming corporation, Appellees (Defendants) Cross-Appellants. Larry FLYNT; Althea Flynt; L.F.P., Inc., a California corporation; Larry Flynt Publications; Hustler Magazine, Inc., a California corporation; Flynt Distributing Company, a California corporation; Flynt Subscription Company, a Nevada corporation; LFZ, Ltd., a B.W.I. corporation; Island Distributing, Inc., a B.W.I. corporation; David Kahn; Jim Goode, Doug Oliver; N. Morgen Hagen; Lonn M. Friend; Inland Empire Periodicals, an Oregon corporation; and Park Place Market, Inc., a Wyoming corporation, Appellants (Defendants) Cross-Appellees. v. Gerry L. SPENCE and the Spence Foundation for People's Attorneys, Inc., Appellees (Plaintiffs) Cross-Appellants.
• Court: Wyoming Supreme Court

Page 771

816 P.2d 771

60 USLW 2134, 19 Media L. Rep. 1129, 19 A.L.R.5th 911

Gerry L. SPENCE and the Spence Foundation for People's Attorneys, Inc., Appellants (Plaintiffs) Cross-Appellees, v. Larry FLYNT; Althea Flynt; L.F.P., Inc., a California corporation; Larry Flynt Publications; Hustler Magazine, Inc., a California corporation; Flynt Distributing Company, a California corporation; Flynt Subscription Company, a Nevada corporation; LFZ, Ltd., a B.W.I. corporation; Island Distributing, Inc., a B.W.I. corporation; David Kahn; Jim Goode, Doug Oliver; N. Morgen Hagen; Lonn M. Friend; Inland Empire Periodicals, an Oregon corporation; and Park Place Market, Inc., a Wyoming corporation, Appellees (Defendants) Cross-Appellants.

Larry FLYNT; Althea Flynt; L.F.P., Inc., a California corporation; Larry Flynt Publications; Hustler Magazine, Inc., a California corporation; Flynt Distributing Company, a California corporation; Flynt Subscription Company, a Nevada corporation; LFZ, Ltd., a B.W.I. corporation; Island Distributing, Inc., a B.W.I. corporation; David Kahn; Jim Goode, Doug Oliver; N. Morgen Hagen; Lonn M. Friend; Inland Empire Periodicals, an Oregon corporation; and Park Place Market, Inc., a Wyoming corporation, Appellants (Defendants) Cross-Appellees. v. Gerry L. SPENCE and the Spence Foundation for People's Attorneys, Inc., Appellees (Plaintiffs) Cross-Appellants.

Nos. 89-17, 89-18.

Supreme Court of Wyoming.

Aug. 8, 1991.

Petition for Rehearing Denied

Sept. 16, 1991.

Gerry L. Spence and Gary L. Shockey, argued, of Spence, Moriarity & Schuster, Jackson, for appellants.

Alan L. Isaacman, argued, David O. Carson, and Kirk N. Sullivan of Cooper, Epstein & Hurewitz, Beverly Hills, Cal., and Paul Godfrey and George E. Powers of Godfrey and Sundahl, Cheyenne, for appellees.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Justice.

Gerry Spence, appellant, undertook to represent Andrea Dworkin in her litigation against Hustler Magazine (Hustler). Because he undertook to represent this client, he was personally attacked by Hustler by being named "Asshole of the Month." Spence is a lawyer. Lawyers named "Asshole of the Month," such as Spence, are "vermin-infested turd dispensers," "parasitic scum-suckers," "shameless shitholes (whose main allegiance is to money) [who] are eager to sell out their personal values, truth, justice and our hard-won freedoms for a chance to fatten their wallets." Spence, a "hemorrhoidal type," was "Asshole of the Month for July" in 1985. Hustler claimed members of Spence's firm were potential witnesses and moved to disqualify them from representing him in this litigation. The district court denied Hustler's motion to disqualify Spence's counsel and then granted Hustler's motion for summary judgment against Spence upon his defamation claim for damages.

We reverse the summary judgment and affirm the order denying the motion to disqualify Spence's counsel.

Spence presents us with this statement of issues in his defamation action:

"1. Whether this Court will give full force and effect to Wyoming's Constitutional issue provision that 'the jury [has] the right to determine the facts and the law, under the direction of the court' in a libel case.

"2. Whether the publication about Spence was false and defamatory, and was published 'with good intent and [for] justifiable ends?'

"3. Whether the publication was protected 'opinion' and whether that question ought to have been presented to the jury for determination."

In response, Hustler asserts:

"1. Whether summary judgment was improper under Article I, Section 20 of the Wyoming Constitution.

"a. Whether Article I, Section 20 forbids summary judgment in a libel action.

"b. Whether the court's responsibility under the First Amendment to grant summary judgment on constitutional issues can be superseded by a provision of the state constitution.

"2. Whether the statements about plaintiff Gerry Spence were constitutionally protected statements of opinion.

"3. Whether Spence met his burden of proving the statements about him were false.

"4. Whether Spence, a public figure, met his burden of coming forward with clear and convincing proof that defendants published falsehoods about him with knowledge that they were false or with a subjective awareness of probable falsity.

"5. Whether Spence's admission that he suffered no reputational harm required dismissal of his libel suit."

Spence's lawsuit against Hustler seeking damages for defamation was precipitated by an article which appeared in the July 1985 issue of Hustler magazine. Shortly before the article was printed, Spence had filed a number of legal actions against Hustler on behalf of clients including Andrea Dworkin. The article or "column," however it might best be characterized, was this:

"Many of the vermin-infested turd dispensers we name Asshole of the Month are members of that group of parasitic scum-suckers often referred to as lawyers. These shameless shitholes (whose main allegiance is to money) are eager to sell out their personal values, truth, justice and our hard-won freedoms for a chance to fatten their wallets. The latest of these hemorrhoidal types to make this page is Jackson, Wyoming, attorney Gerry Spence, our Asshole of the Month for July.

"Spence dudes himself up in western duds and calls himself a 'country lawyer,' but the log-cabin image is as phony as a cum-dripping whore's claim of virginity: This reeking rectum is worth millions and owns a 35,000 acre ranch. Spence's claim to fame is that in the name of 'the little guy' he's won some mighty big judgments * * *. He'd like to add HUSTLER to the list ... for a whopping $150 million. His client is 'little guy' militant lesbian feminist Andrea Dworkin, a shit-squeezing sphincter in her own right. In her latest publicity-grab, Dworkin has decided to sue HUSTLER for invasion of privacy among other things.

"Dworkin seems to be an odd bedfellow for 'just folks,' 'family values' Spence. After all, Dworkin is one of the most foul-mouthed, abrasive manhaters on Earth. In fact, when Indianapolis contemplated an antiporn ordinance co-authored by Dworkin, she was asked by its supporters to stay away for fear her repulsive presence would kill the statute. Spence, however, can demand as much as 50% of the take from his cases. And a possible $75 million would buy a lot of country for this lawyer. Considering that Dworkin advocates bestiality, incest and sex with children, it appears Gerry 'This Tongue for Hire' Spence is more interested in promoting his bank account than the traditional values he'd like us to believe he cherishes.

"This case is nuisance suit initiated by Dworkin, a cry-baby who can dish out criticism but clearly can't take it. The real issue is freedom of speech, something we believe even Dworkin is entitled to, but which she would deny to anyone who doesn't share her views. Any attack on First Amendment freedoms is harmful to all ... Spence's foaming-at-the-mouth client especially. You'd think someone of Spence's stature would know better than to team up with a censor like Dworkin. Obviously, the putrid amber spray of diarrhea known as greed has clouded this Asshole's senses." (emphasis in original)

At the outset we must agree with Hustler that Article 1, § 20 of the Wyoming Constitution does not provide an avenue of relief that supersedes well-established First Amendment law in cases such as this. The United States Constitution, as interpreted by the United States Supreme Court, is the supreme law of the land. This is recognized in our own state constitution. Wyo. Const., Art. 1, § 37. We do not agree that Art. 1, § 20 absolutely guarantees a plaintiff a trial to a jury in a defamation case. Spriggs v. Cheyenne Newspapers, 63 Wyo. 416, 182 P.2d 801, 804-09 (1947); see Tschirgi v. Lander Wyoming State Journal, 706 P.2d 1116 (Wyo.1985).

The district court relied heavily upon the case Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) in granting summary judgment in favor of Hustler in this case. The United States Supreme Court said in that case:

"We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue [which was similar in gutter language to that in this case] without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a 'blind application' of the New York Times standard, see Time, Inc. v. Hill, 385 U.S. 374, 390, 87 S.Ct. 534, 543, 17 L.Ed.2d 456 (1967), it reflects our considered judgment that such a standard is necessary to give adequate 'breathing space' to the freedoms protected by the First Amendment.

"Here it is clear that respondent Falwell is a 'public figure' for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not 'reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.' * * * The Court of Appeals interpreted the jury's finding to be that the ad parody 'was not reasonably believable,' * * * and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by 'outrageous' conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here." Hustler, 485 U.S. at 57, 108 S.Ct. at 882-83 (emphasis added).

We first observe that development of the law of defamation has moved along a strange path to a place...