Underwager v. Salter

• Decision Date: 25 April 1994
• Docket Number: No. 93-2422,93-2422
• Citation: 22 F.3d 730
• Parties: 22 Media L. Rep. 1852 Ralph UNDERWAGER and Hollida Wakefield, Plaintiffs-Appellants, v. Anna SALTER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 730

22 F.3d 730

22 Media L. Rep. 1852

Ralph UNDERWAGER and Hollida Wakefield, Plaintiffs-Appellants, v. Anna SALTER, et al., Defendants-Appellees.

No. 93-2422.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 1993.

Decided April 25, 1994.

Robert Sutton (argued), Milwaukee, WI, for Ralph Underwager and Hollida Wakefield.

John W. Markson (argued), John M. Moore, Teresa A. Mueller, Bell, Metzner, Gierhart & Moore, Madison, WI, for Anna Salter.

Michael L. Zaleski (argued), Andra J. Palmer, Quarles & Brady, Madison, WI, for Patricia Toth, Mimi Rose, National Center for Prosecution of Child Abuse, American Prosecutors Research Institute and National Dist. Attys., Ass'n and James Peters, Sr.

Michael P. Erhard, Foley & Lardner, Milwaukee, WI, Grant C. Mitchell, Vaughan & Vaughan, Lafayette, IN, for Charles Vaughn.

Charles Vaughn, pro se.

Before EASTERBROOK and ROVNER, Circuit Judges, and REINHARD, District Judge. ^*

EASTERBROOK, Circuit Judge.

Psychologists Ralph Underwager and Hollida Wakefield have written two books: Accusations of Child Sexual Abuse (1988), and The Real World of Child Interrogations (1990). They conclude that most accusations of child sexual abuse stem from memories implanted by faulty clinical techniques rather than from sexual contact between children and adults. The books have not been well received in the medical and scientific press. A review of the first in the Journal of the American Medical Association concludes that the authors took a one-sided approach: "it may be that the adversarial system has so influenced this discussion [about child abuse] that objectivity no longer has value. The book contains almost 420 text pages and the authors cite over 700 references, but they do not really review this body of literature, they cross-examine it. When a given reference fails to support their viewpoint they simply misstate the conclusion. When they cannot use a quotation out of context from an article, they make unsupported statements, some of which are palpably untrue and others simply unprovable." David L. Chadwick, Book Review, in 261 JAMA 3035 (May 26, 1989).

Underwager's approach has failed to carry the medical profession, but it has endeared him to defense lawyers. He has testified for the defendant in more than 200 child abuse prosecutions and consulted in many others. When prosecutors in Australia concluded that Tony Deren had sexually assaulted children who attended his wife's nursery school, Deren's lawyers hired Underwager, who testified at a preliminary hearing that children are incapable of correctly remembering or accurately describing sexual contacts. The judge accepted this view, which Underwager depicted as the medical consensus, and Deren was not committed for trial. That decision caused a public outcry in Australia, and "60 Minutes Australia," modeled after the CBS series in the United States, decided to look into the subject. Reporter Mike Munro interviewed Underwager at his clinic in Minnesota and traveled to New York to interview other persons, including Anna Salter, a psychologist who had written a monograph about Underwager's conclusions. The program, "Witness for Mr Bubbles" (Deren allegedly assaulted the children in the nursery's whirlpool bath and came to be called "Mr Bubbles" in the Australian press), aired in Australia on August 5, 1990. The producers sent a tape of the episode to Salter, who sent a copy to Patricia Toth. Since 1987 Toth, formerly a criminal prosecutor in Washington state, has been the director of the National Center for Prosecution of Child Abuse, a project of the American Prosecutors Research Institute.

Salter had for some years doubted that Underwager's books and testimony accurately reflected the clinical literature. After receiving a grant from the New England Association of Child Welfare Commissioners and Directors to finance an annotated bibliography of studies on child abuse interviews, Salter decided to concentrate on the papers Underwager and Wakefield had cited in their 1988 book. Over the course of 18 months Salter read the original works Underwager and Wakefield had discussed. In January 1990 she delivered to the New England Association a monograph titled: "Accuracy of Expert Testimony in Child Sexual Abuse Cases: A Case Study of Ralph Underwager and Hollida Wakefield." This unpublished monograph has been widely circulated; Salter sent a copy to the National Center for Prosecution of Child Abuse, which has made it available to prosecutors and other interested persons. The monograph is highly critical of the 1988 book and of Underwager's testimony. Like Dr. Chadwick's book review, the monograph states that the book misrepresents the studies, rips quotations from their context (and misleadingly redacts them), attributes to scholars positions they once held but have repudiated in light of more recent research, and ignores evidence contradicting its thesis. While Chadwick's indictment of the book advances conclusions but not the supporting evidence, Salter's is packed with details. For her interview with 60 Minutes Australia, however, Salter compressed her conclusions into popular language, telling Munro that Underwager "distorts the facts" and that his testimony in the Mr Bubbles case that 90% of all accusations of child molestation are wrong is "gobbledygook" unsupported by any scientific evidence. In October 1990 Toth made a two-hour presentation to prosecutors at the Midwest Conference on Child Sexual Abuse and Incest, held in Madison, Wisconsin. As part of her presentation Toth played the Mr Bubbles episode. She has since played the tape at 10 or more other workshops.

Underwager and Wakefield believe that they have been defamed. They filed this action under the diversity jurisdiction in the Western District of Wisconsin, using the playing of the Mr Bubbles tape at the Midwest Conference as the actionable event. They named 11 defendants: Salter, Toth, Munro, the National Center for Prosecution of Child Abuse, the American Prosecutors Research Institute, the National District Attorneys Association, Channel 9 Australia, 60 Minutes of Australia, Mimi Rose, Charles Vaughan, and James Peters. The district judge quickly dismissed the National Center for Prosecution of Child Abuse; as a "project" of the American Prosecutors Research Institute it is not a juridical entity and cannot be sued. Channel 9 Australia and 60 Minutes of Australia also appear to be trade names rather than legal entities, but we need not worry about them because they (and Munro) have been dropped from the litigation by consent. Rose, Vaughan, and Peters were among the persons Munro interviewed for the Mr Bubbles segment. The district judge dismissed them because they have no contacts with Wisconsin. None of them did anything in Wisconsin, sent anything into Wisconsin, or had any way of knowing that a segment of an Australian TV series would end up being shown at a seminar in Wisconsin. The judge granted summary judgment in favor of the American Prosecutors Research Institute and the National District Attorneys Association because they had nothing to do with the defamation of which plaintiffs complain. These rulings are correct and do not require additional comment. Similarly we step lightly past the question, discussed in detail at oral argument, whether the papers in the district court show complete diversity of citizenship. Additional documents filed after oral argument establish jurisdiction. 28 U.S.C. Sec. 1653.

Only Salter and Toth remained as defendants. The district court granted summary judgment in their favor, concluding that no evidence in the record suggests that they acted with "actual malice"--a term that reads to the untutored eye as a proxy for "ill will" but actually means knowledge that the statement was false, or doubts about its truth coupled with reckless disregard of whether it was false. Masson v. New Yorker Magazine, Inc., 501 U.S. ----, ---- - ----, 111 S.Ct. 2419, 2429-30, 115 L.Ed.2d 447 (1991). See also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1088 (7th Cir.1990). The district judge assumed that Salter and Toth hold Underwager in low esteem and would be delighted to see his career as an expert witness in tatters, but the judge held that the undisputed evidence shows that Salter believes that all of her statements are true, that Toth believes that the statements in the Mr Bubbles tape are true, and that neither person acted recklessly in reaching these conclusions. Salter and Toth add, in defense of their judgment, that the undisputed facts show that the statements are actually true, making their states of mind (and the care that preceded their statements) irrelevant. Like the district court we shall assume that at least some of the statements are untrue and defamatory. Cf. Moldea v. New York Times Co., 15 F.3d 1137 (D.C.Cir.1994). Affidavits offered in opposition to the motion for summary judgment create a material dispute on the truth of the statements. Like the district court, however, we believe that there is no bona fide dispute about actual malice.

Before discussing that issue in detail, however, we take up plaintiffs' argument that they need not establish actual malice--either because they are not public figures or because Wisconsin law reserves the actual malice standard for the press. Note that we speak of Wisconsin law, not of the complex of rules under the first amendment that has been developing since New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Constitutional defenses are irrelevant unless state law creates liability. Federal courts decide constitutional questions only when necessary....