# Petition for Writ of Certiorari — Ault v. Hustler Magazine, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1080

## Text

82. .
1215 Ol a cant US
3 B
JAN 23. 1989

. Ol, JR.
i

IN THE j
SUPREME COURT OF THE UNITED STATES

October Term, 1988

PEGGY AULT,
Petitioner,
v.

HUSTLER MAGAZINE, INC., a Cali-
fornia corporation; LARRY FLYNT,

a citizen of California; FLYNT
DISTRIBUTING COMPANY, INC., a
California corporation; FLYNT
SUBSCRIPTION COMPANY, INC.,

a Nevada corporation; L.F.P., INC.,

a California corporation; BAY NEWS, '
INC., dba Fred N. Bay News Company,
an Oregon corporation; BAY NEWS INC.,
an Oregon corporation,

Respondents.

Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit

G.L. SPENCE

GARY L. SHOCKEY

SPENCE, MORIARITY & SCHUSTER

265 W. Pearl Street

Jackson, Wyoming 83001
Counsel for Petitioner.

isostatic nae Race aaae aaa

?

QUESTIONS PRESENTED

Is a pornographic verbal depiction of Peggy Ault in
Hustler Magazine, which the United States Court of
Appeals for the Ninth Circuit recognized as "initially
defamatory," coupled with a photograph of Peggy
Ault obtained by fraudulent means published in the
naked rear end of a bent-over man, entitled to be

classified as protected opinion?

. Does the classification as protected opinion of a

pornographic verbal depiction of Peggy Ault in
Hustler Magazine, which the United States Court of
Appeals for the Ninth Circuit recognized as “initially
defamatory," coupled with a photograph of Peggy
Ault obtained by fraudulent means published in the
naked rear end of a bent-over man, exceed the
scope of protected opinion contemplated by Gertz v.
Welch?

. Should this Court review the decision of the United

States Court of Appeals for the Ninth Circuit in order
to delineate the parameters of what is _ protected
Opinion in order to guide future decisions
concerning pornographic attacks such as Hustler

directed at Peggy Ault?

. Should this Court resolve a conflict in the tests for

what is protected opinion between the United States

Courts of Appeal for the Second and Ninth Circuits?

5.

I]

Is it an unlawful intrusion, misappropriation of
image, or a public disclosure of private facts for a
pornographic publication like Hustler Magazine to
obtain a photograph by illegal means and false
pretense, superimpose it over the rear end of a bent
over naked man, and accompany it with a malicious

attack on Peggy Ault?

III

TABLE OF CONTENTS

QUESTIONS PRESENTED ........... I
TABLE OF AUTHORITIES .......... III
eo 6 ee 2
a 2
CONSTITUTIONAL PROVISIONS
ee ae 2
STATEMENT OF THE CASE ......... ;
REASON FOR GRANTING THE WRIT.. . 10

The decision below is an_ unjustified

extension of Gertz v. Welch, 418 U.S. 323
(1974) and Hustler Magazine, Inc., v.

Falwell, 108 S.Ct. 876 (1988).

nS re 28
APPENDIX

Opinion Of The Court Of Appeals For
ee ree . A-l

Mesroauction Of Article ............. A-B

IV

TABLE OF AUTHORITIES

Cases Page
Anderson v. Fisher Broadcasting
Companies, Inc., 300 Ore. 452, 712 P.2d
SUE Sa a ores he ko a eo we ea aed 22

Beecher v. Montgomery Ward & Co., Inc.,
517 P.2d 667, (Ore. App. 1973) ........ 12

Bock v. Zittenfield, 672 P.2d 1237
ME a a rag a bcaa a oo 0 89 12

Brown v. Darcy, 783 F.2d 1389
i Ce ch bes ee ee eee aoe 12

Buckley v. Littell, 539 F.2d 882
ee | PS PELE eT ee Te Tee ee Tee 13

Capra v. Thoroughbred Racing Association
of North America, Inc., 787 F.2d 463
ae SP ae 22

Church of Scientology of California
v. Flynn, 744 F.2d 694 (9th Cir. 1984)... .
Verret ey rer oT ee ere Ter eer re Te ee 12,13,14

Conley v. Gibson, 355 U.S. 41, 45-46
ESE OS rat ne ae aA Lar ad wren a ee 24

Dun & Bradstreet v. Greenmoss Builders,
ee ee ED oe a bk wae eee ke ees 26

Gertz v. Welch, 418 U.S. 323
42, See eer eee ne 10,11,12,13,14,15,16

Greenbelt Cooperative Publishing
Association, Inc., v. Bressler, 398 U.S. 6
(2 PPP errr errr rs over err ee rr 15

Herceg v. Hustler Magazine, Inc., 814 F.2d
G57, HGS Coe CA, TGF) 2k ae ee ewe ue 26

Hinish v. Meier & Frank Co., 166 Ore. 482,
SED Fae Se Cees 6 0 en 84s a 22

Humphers v. First Interstate Bank,
68 Ore. App. 573, 684 P.2d 581, 588
te er rer ry ren 24

Hustler Magazine, Inc., v. Falwell,
108, S.Ct. 876 (1988). ....... 10,18,19,20,21

Information Control Corporation v.
Genesis One Computer Corporation,
GUS Fc Fe) Ge Oe. Te 6c a i ee oe 14

Kelly v. Schmidberger, 806 F.2d 44
Coe Oe. TS 6 6 oe ee ee 13,16

King v. Menolascino, 276 Ore. 501,
TaD Coat Ge CE or so Oe ee ee ee 12

Koch v. Goldway, 817 F.2d 507,
CR CO Pt sae eee ee eee eee ene 14

Vi

Letter Carriers v. Austin, 418 U.S. 264
CUOPEE 6 00200 cebake tet 15,16

Lewis v. Time Incorporated, 710 F.2d
an Cre Oe. Te os oe ks Gace 14

Mr. Chow of New York v. Ste. Jour
Azur, S.A.,739 F.2d 219
i A: | re GO Na ner. 16

New York Times v. Sullivan, 376 U.S.
BOT 656808 ieciisit hie ee 20

Tollefson v. Price, 430 P.2d 990
OND. TOT) ig sce wee cncseseeixckeevtee 22

Virgil v. Time, Inc., 527 F.2d 1122
(9th Cir. 1975), cert. den. 425 U.S.
DOP ncn 4 ee beasts suaresedbdink 21,22,23,25

Yagman v. Baden, 796 F.2d 1165,
(9th Cir. 1986)... 2... ee ee ee eee ee 14

Statutes
28 U.S.C. Section 1254(1).. 2... ...0..22... 2

28 U.S.C. Sections 1331(a) and
lt)

Vil

Other Authorities

Restatement, Second, Torts, Sec. 652D .. . 23
United States Constitution,
I ae eee 2

United States Constitution,
FourteenthAmendment................- 2

IN THE
SUPREME COURT of the UNITED STATES

October Term, 1988

PEGGY AULT,
Petitioner,

HUSTLER MAGAZINE INC., et al.,
}
Respondents.

Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit.
Petitioner Peggy Ault respectfully prays that a

Writ of Certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Ninth Circuit filed in this proceeding on October 25,
1988. That decision affords constitutional protection to
defamatory speech to an extent beyond the scope of
protection intended by the Constitution or this

Honorable Court.

OPINION BELOW
The opinion of the United States Court of Appeals
for the Ninth Circuit is reproduced and attached in full
as Appendix A.

JURISDICTION

The opinion of the United States Court of Appeals
for the Ninth Circuit was filed October 25, 1988. No
petition for rehearing or other proceedings were
instituted. This Petition for a Writ of Certiorari is filed
within ninety (90) days of October 25, 1988. This
Court's jurisdiction is invoked pursuant to 28 U.S.C.
Section 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED
The applicable constitutional provisions involved
are the First Amendment! and the Fourteenth
Amendment2 to the United States Constitution.

1Congress shall make no law respecting an cstablishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and petition
the Government for a redress of grievances.

2Section 1. All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunites of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws. .

3

STATEMENT OF THE CASE

The claims made by Peggy Ault in this matter all
arose out of the publication of an article titled "Asshole
of the Month: Peggy Ault," by Hustler Magazine. The
article contained numerous defamatory references to
Peggy Ault. Additionally, Hustler had obtained a
photograph of Peggy Ault through false pretenses.
Hustler superimposed her photo on to the rear end of a
bent-over naked man as a heading for the article. A
reproduction of the article is attached as Appendix B.
Its text is stated in full in this Petition, infra.

Peggy Ault originally filed her action for libel,
invasion of privacy, intentional infliction of emotional
distress, and related claims in state court in Oregon.
The case was removed to federal court. The federal
district court took jurisdiction based on the removal
petition and retained federal jurisdiction based on 28
U.S.C. Sections 1331(a) and 1441(a).

Peggy Ault was a private citizen who resided in a
small town on the outskirts of Portland, Oregon. She
opposed opening a _ store dealing in pornographic
materials in her neighborhood.

For reasons yet unknown to Peggy Ault, her
Opposition to pornography caught the gttention of
Huster Magazine. Her efforts had been the subject of a
newspaper article published in the local Willamette
Weekly. But it shocked Peggy Ault that her activities
became the subject of a nationally’ distributed
pornographic publication such as Hustler.

4

Hustler had contacted Peggy Ault and learned
that she did not desire further exposure for her
activities. Under the guise of "Century City Research,"
the research department of Hustler telephoned Peggy
Ault and sought a photograph and other information
from her. Peggy Ault turned Hustler down.

Nevertheless, "Century City Research" obtained
two photographs of Peggy Ault from Cathy Cheney, who
had taken the photos for the Willamette Weekly.
Hustler proceeded to publish its defamatory attack on
Peggy Ault, accompanied by her photograph.

Under her picture, the article began its attack on

Peggy Ault:

Straight feminists and dyke feminists alike
are shoving their tongues up the ass of their new
master, Jerry Falwell, because they believe he'll
help them make pornography go away. So it
seems there wouldn't be much need for another
wacko group to tackle the imagined evils of porn.

Nevertheless, Peggy Ault - who probably
wouldn't know a feminist or a dyke even if one
pissed on her leg - took it upon herself to form
Citizens in Action for Clackamas County (CIA) to
go one-on-one with smut. And we took it upon
ourselves to name her HUSTLER's Asshole of the
Month for April.

Headquartered in Milwaukee, Oregon - a
small town outside Portland - CIA and _ its
offshoot, Citizens for Legislation Against
Decadence (CLAD), exist for the express purpose
of denying Oregonians their constitutional rights
to view or read anything Ault and her self-styled
censors deem pornographic. And Ault knows
porn when she sees it.

5

Up to this point, except for identifying Peggy.
Ault as a member of a "wacko" group and calling her a
"censor," the publication is relatively tame. However,
in typical Hustler style, the article continued in a much

more vindictive manner:

Her imagination is so active, she can't turn
around without being accosted by something she
considers smutty. Would you believe that this
tightassed housewife feels so threatened by sex
that she removes underwear and lingerie ads
from the daily newspaper before allowing her
children to read it?

Clearly she's the sort of person who'd go so
far as to replace Oregon's nickname, the Beaver
State, because of its sexual connotations. But
rather than attempt to solve her problems by
seeking professional help, this deluded busybody
obviously decided that a better course of action
would be to take her frustrations out on the
entire state of Oregon.

Here's how it happened: One day while
reading the local paper (and can't you just hear
her clit throbbing as she crumpled up those
offending undies ads?), Ault saw an article
announcing the opening of an adult-video store
in her town. Normally, people who have no
desire to view a porn film just don't rent one or
buy one. Not Peggy. She was so outraged at the
existence of a store specializing in X-rated fare
that she and some of her pals picketed the
establishment. Thus was born the community-
oriented CIA. (Why do those initials sound so

a ia

menacing?)

In these words, Hustler personalized its attack on
Peggy Ault herself, not just her opposition to
pornography. She is referred to as "tightassed" and
“threatened by sex," both of which are objective
descriptions of character traits, not opinions of her
social views. Twice more she is portrayed as mentally
deficient, as a “deluded busybody" who should have
sought "professional help."

The worst of Hustler's characterizations of Peggy
Ault was its suggestion that she became sexually
aroused by removing advertisements from _ the
newspaper - "can't you just hear her clit throbbing as
she crumpled up those offending undies ads?" This is
Hustler’s technique - to make the person it attacks into
a pornographic object herself. This type of attack on
Peggy Ault, taken with the remainder of the article,
prompted the United States Court of Appeal for the
Ninth Circuit to agree that a reasonable interpretation
of the depiction in words and picture of Peggy Ault is
that they were intended to make Hustler's readers look
at Peggy Ault in the same light that they look at the
naked models in the magazine - as objects, unworthy of

intellectual respect and worthy only of sexual
contempt.

The concluding paragraphs of the article
continued the personal attack on Peggy Ault. They also
continued her objectification:

3Opinion, Appendix A, pp. A-10, A-11.

When her intimidation tactics failed to
force the store to close, she formed CLAD, a
statewide organization for influencing legislators.
Ault, you see, has big plans for Oregon - nothing
less than altering the state constitution to allow
her and her cronies to determine what is suitable
for others to read or view.

Now, it's one thing to “supervise” what
one's children read, but if Ault has her way, she
would wipe out the first amendment rights of
every adult who gets a charge out of x-rated
films.

Although Ault's neighbors don't all appear
to share her fanatacism ("We have a very
apathetic community here," she confided to
HUSTLER’s sources), the forces of repression
rarely give up. And Ault and her ilk have made
it clear that they regard freedom of speech as a
privilege to be awarded to a select few.

Well, we've got news for Peggy Ault:
Freedom of speech is a right guaranteed to every
American from pornographers on down to the
basest money-grubbing, fear-mongering TV
evangelists.

It's tempting to dismiss her as nothing
more than a small-town crackpot, but we believe
that anyone who wants to destroy the rights of
others must be taken seriously - no matter how
big an Asshole she is.

With these words, Hustler again characterized
Peggy Ault as mentally deficient - referring to her
"fanatacism" and to her as a "crackpot." And the
suggestion that she would "confide" in Hustler's sources,
which she did not do except to turn down "Century City

Research's" request for information, was an_ untrue
characterization of Peggy Ault.

The United States Court of Appeals for the Ninth
Circuit found that the publication about Peggy Ault was
defamatory. "First, although we agree with Ault that

the words initially convey a defamatory meaning, when

the facts of publication are considered the words
assume the character of _ protected opinion."4
(Emphasis added.) The Court reasoned that because of
the nature of the publication where the attack
appeared, i.e., Hustler Magazine, the otherwise
defamatory attack on Peggy Ault became
constitutionally protected opinion. Peggy Ault was
harmed by Hustler's “defamatory opinion,” but without
legal remedy.

The decision in the United States Court of
Appeals for the Ninth Circuit culminated a long series
of legal rulings adverse to Peggy Ault. As noted, Peggy
Ault's original complaint had alleged libel, invasion of
privacy, intentional infliction of emotional distress, and
other related causes of action. The trial court, Hon.
Helen J. Frye, dismissed all claims pursuant to various
Rule 12 motions. The libel and intentional infliction of
emotional distress claims were dismissed pursuant to
the trial court's finding that the statute of limitations
had run. Peggy Ault appealed this ruling. The United
States Court of Appeals for the Ninth Circuit did not
reach this issue because the Court ruled that its finding

41d., p. A-7

9

that the article constituted protected opinion disposed
of the matter.

The trial court also dismissed all of Peggy Ault's
claims for invasion of privacy: specifically, claims for
false light invasion of privacy, public disclosure of
private facts, intrusion, and misappropriation of image.
The United States Court of Appeals for the Ninth Circuit
upheld the false light dismissal on the basis that the
article constituted protected opinion.

With respect to public disclosure of private facts,
the trial court had found that Oregon law required such
a claim must plead allegations of the truthfulness of the
facts so published. The United States Court of Appeals
for the Ninth Circuit agreed, and added that the facts
about Peggy Ault appeared to be public facts rather
than private ones. The trial court did not give a reason
for its dismissal of the intrusion claim. The United
States Court of Appeals for the Ninth Circuit found that
republication of the photograph (originally given to
another photographer, with Peggy Ault's understanding
that it would be used only for the local newspaper) was
not an intrusion. The misappropriation findings of both
the trial court and the United States Court of
Appealsfor the United States Court of Appeals for the
Ninth Circuit were to the effect that the article was
"newsworthy" and that it was not published solely for
the commercial benefit of Hustler. Peggy Ault also

made related claims for trespass and conversion, but

10

these are not the subject of or germane to this Petition
for Writ of Certiorari.

In its final decision, the trial court found that the
article as a whole constituted protected opinion. This
rationale, above all, formed the basis for much of the
decision of the United States Court of Appeals for the
Ninth. The finding that the article constitutes protected
Opinion is the primary focus of this Petition for Writ of
Certiorari. The dismissal of the public disclosure of
private facts, intrusion, and misappropriation are

presented as further grounds for granting the writ.

REASONS FOR GRANTING THE WRIT

The decision below is an_ unjustified
extension of Gertz vy, Welch, 418 U.S. 323

(1974) and Hustler Magazine, Inc,, v, Falwell,
108 S.Ct. 876 (1988).

The decision below affords undue constitutional
protection to defamatory statements in claims for libel,
intentional infliction of emotional distress, and false
light invasion of privacy. Appeals courts have, over
the years, seized on the dicta of Gertz that "there is no
such thing as a false idea," to create an overly broad
and unacceptably subjective category of constitutionally
protected opinion. Review of the scope of protected

Opinion is sought.

SGertz_v. Welch, at 418 U.S. 339.

11

Overextension of the Concept of Opinion.

There are constitutional limits on the right to
defame, as this Court has observed:

However, the need to avoid self-censorship
by the news media is, however, not the only
societal value at issue. If it were, this Court
would have embraced long ago the view that
publishers and _ broadcasters enjoy” an
unconditional and undefendable immunity from
liability for defamation. Yet absolute protection
for the communications media requires a total
sacrifice of the competing value served by the

law of defamation. Gertz v. Welch, supra, at 418
U.S. 341.

The absolute right to defame does not exist, but
the United States Court of Appeals for the Ninth Circuit
has extended the concept of protected opinion beyond
the scope contemplated by the First Amendment and
Gertz, supra. This is particularly true when, as in this
case, the United States Court of Appeals for the Ninth
Circuit allows the "context" of the publication, to wit, a
pornographic magazine, to control the determination of
whether defamatory statements are protected opinion.

It is critical to note the result in Gertz - a private
citizen was allowed to pursue a claim for libel despite
of claims by the defendants that their defamatory
statements were constitutionally privileged. Justice
Powell also pointed out that "there is no constitutional
value in false statements of fact. Neither the
intentional lie nor the careless error materially

advances society's interest in ‘uninhibited, robust, and

12

wide-open’ debate on public issues." Gertz, supra, at
418 U.S. 340.

The words used to attack Peggy Ault, even to be
an opinion, must express an_ idea. What idea is
expressed? What public debate is furthered by this
type of assault on her personal dignity? None.
Elevation of such conduct to the pedestal of protected
speech should not be tolerated.

The Ault decision legitimizes a category of

defamation, defamatory opinion, to an extent which
should be constitutionally unacceptable. The words
and depiction of Peggy Ault are clearly defamatory.
"We agree with Ault that the words initially convey a

defamatory meaning. . ." United States Court of Appeal
for the Ninth Circuit opinion, Appendix A, p. A-7. The
words are capable of a defamatory meaning and meet
the test of both Oregon state law and Ninth Circuit
decisions in this regard. They constitute libel, per se.
See, e.g., Beecher v. Montgomery Ward & Co., Inc., 517
P.2d 667, (Ore. App. 1973); King v. Menolascino, 276
Ore. 501, 555 P.2d 442 (1976); Bock v. Zittenfield, 672
P.2d 1237 (Ore. App. 1983); Church of Scientology of
California _v. Flynn, 744 F.2d 694 (9th Cir. 1984); and
Brown v. Darcy, 783 F.2d 1389 (9th Cir. 1986).

But the United States Court of Appeals for the

Ninth Circuit (and other circuits) have extended the
concept of opinion well beyond Gertz, and instituted

tests which defy an objective, uniform application.

Gertz did not authorize the type of attack which was

13

levied against Peggy Ault. Gertz did not contemplate a
convoluted test of what is opinion. Gertz did not
contemplate the illogical results which deny Peggy Ault
a remedy but allow a church group to prevail against a
man who merely suggested that someone may have

tried to kill him (Church of Scientology, supra). Gertz

did not anticipate that William F. Buckley should
prevail against a man who inferred that Buckley may
have libelled others, Buckley v. Littell, 539 F.2d 882
(2d Cir. 1976), while leaving Peggy Ault totally without

a remedy. Gertz did not intend that a statement by a

president of a priestly society which suggested that
some members had placed church property in their
own names would not be classified as opinion, Kelly v.
Schmidberger, 806 F.2d 44 (2d Cir. 1986), while the
vile attack on Peggy Ault by Hustler would be.

The United States Court of Appeals for the Ninth
Circuit test for what is or is not a constitutionally
protected opinion, as stated by the Court in Peggy

Ault's case, is:

1. Whether the words can be understood
in a defamatory sense in light of the facts
surrounding the publication, including the
medium by which, and the audience to which,
the statement is disseminated;

2. Whether the context in which the
statements were made, e.g., public debate or a
labor dispute, would lead the audience to
anticipate persuasive speech such as “epithets,
fiery rhetoric or hyperbole;" and

14

3. Whether the language used is the kind
generated in a "spirited legal dispute." Opinion,
Appendix A, p. A-7.

This test, in the Ninth Circuit, is the product of a line of
cases composed of Information Control Corporation _v.
Genesis One Computer Corporation, 611 F.2d 781 (9th
Cir. 1980); Lewis _v. Time Incorporated, 710 F.2d 549
(9th Cir. 1983); Church of Scientology of California _v.
Flynn, supra; Yagman v. Baden, 796 F.2d 1165, (9th Cir.
1986); and Koch v. Goldway, 817 F.2d 507, (9th Cir.
1987).

There are two primary problems with the test of

the United States Court of Appeals for the Ninth Circuit
for what is constitutionally protected opinion. The first

is that, well beyond the scope and intention of Gertz, it

looks to the context of the publication as a controlling
factor. In Peggy Ault's case, the Court found that the
placement of the attack in Hustler Magazine immunized
words which were otherwise defamatory. What if the
same words about Peggy Ault had been in Time
Magazine or The New York Times? Under the United
States Court of Appeals for the Ninth Circuit resolution
of Peggy Ault's case, since the readership of such
legitimate publications might not ordinarily expect to
see such vituperative attacks, Peggy Ault should
prevail. Time Magazine or the New York Times would
not be entitled to claim that the same words about
Peggy Ault were protected opinion.

The words were just as hurtful to Peggy Ault's

reputation regardless of whether they were printed in

15

Hustler or in Time. The attack was just as damaging to
Peggy Ault emotionally no matter where it was printed.
Peggy Ault's pain deserves protection.

This emphasis on the context of where the words
are printed springs from a misapplication of Gertz,
Supra, coupled with this Court's decision in Letter
Carriers _v. Austin, 418 U.S. 264 (1974).6 In Letter

Carriers, in addition to first amendment considerations,

there were provisions of the Labor Management
Relations Act which encouraged free debate on issues
dividing labor and management. This Court gave
additional emphasis to protect speech in the heated
context of labor disputes, based on the _ First
Amendment and the Labor Management Relations Act.
Unfortunately, the United States Court of Appeals for
the Ninth Circuit has extended this approach to include
acontext feature of the test for constitutionally
protected opinion beyond the scope of Gertz, Letter
Carriers, and Greenbelt Publishing. It is for this reason
that Peggy Ault adamantly argued, and continues to

6One other U.S. Supreme Court decision, Greenbelt
Cooperative Publishing Association, Inc., v. Bressler, 398
U.S. 6 (1970), is commonly cited by the appeals courts in
their discussions of what is constitutionally protected
opinion. It involved newspaper coverage of a city
council mecting at which some citizens characterized the
negotiating position of an applicant for a _ zoning
variance as "blackmail." It is from this decision that
courts have allowed "rhetorical hyperbole" and _ the
"vigorous epithet" in a "heated public debate" to qualify
as protected opinion. Peggy Ault asserts that the nature
of Hustler's assault on her is of a completely different
character and degree.

16

maintain, that a deliberate, calculated attack on her
which was the product of a lengthy editorial process is
not entitled to the same "contextual" considerations as
name-calling at a city council confrontation. The
rejection by the United States Court of Appeals for the
Ninth Circuit of Ault's arguments in this regard? is an
Overextension of the concepts embodied in decisions
from this Court.

The second principal problem with the United
States Court of Appeals for the Ninth Circuit test for
what is constitutionally protected opinion is that the
Ninth Circuit is inconsistent with other circuits. A
discussion of the rule in the Second Circuit illustrates
that point. Both Mr. Chow of New York v. Ste. Jour
Azur, S.A., 739 F.2d 219 (2d Cir. 1985), and Kelly v.
Schmidberger, supra, at 806 F.2d 47, outline the test as

follows:

1. Examine both the context in which the
Statements are made and the circumstances
Surrounding the statements.

2. Look at the language itself to determine
if it is used in a precise, literal manner or in a
loose, figurative or hyperbolic sense.

3. Examine the statements to determine if
they are objectively capable of being proved true
or false. (If so, it is not opinion.)

4. Even if the above analysis indicates that
the statement is opinion, determine if it implies

7"We must reject Ault's effort to limit the meaning of
‘public debate’ to an oral, contemporaneous exchange of
ideas." Opinion, Appendix A, p. A-8.

17

the allegation of undisclosed defamatory facts as
the basis for the opinion. (If so, it is not opinion.)

Parts 1 and 2 of the United States Court of
Appeals for the Second Circuit test resemble aspects of
the United States Court of Appeals for the Ninth Circuit
test for opinion. However, parts 3 and 4 of the United
States Court of Appeals for the Second Circuit test differ
radically, and in ways which might have made a
difference if they were applied to the statements about
Peggy Ault.

If a statement objectively provable as true or
false cannot be an opinion, then many of the
Statements made about Peggy Ault should be
considered as false statements of fact rather than
protected opinion. It is objectively demonstrable that
Peggy Ault (not her ideas about pornography) is not
crazy, psychotic, or otherwise clinically mentally
deficient. It is objectively provable that she is not
sexually aroused ("can't you just hear her clit
throbbing") by reading a newspaper or cutting
advertisements from it. It is objectively provable that
she does not feel "threatened by sex." It is objectively
provable that she did not "confide" in Huslter’s sources.

Under this test, Peggy Ault would have prevailed.

Falwell Should Not Control The Opinion Analysis; The
Pr ions Affor nder_ Falwell Ar fficien
Without a Blanket Extension of Opinion Protection To
Claims For Intentional Infliction Of Emotional Distress

The United States Court of Appeals for the Ninth

Circuit relied strongly on the recent decision of this

18

Court in Hustler_v. Falwell, supra. In rejecting Peggy
Ault's claims, the United States Court of Appeals for the
Ninth Circuit observed as follows: (Opinion, Appendix
A, pp. A-5 and A-6)

Nor can privileged opinion support a claim
for intentional infliction of emotional distress.

Hustler Magazine, Inc., v. Falwell, 108 S.Ct. 876
(1988). Falwell holds "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 without showing in addition that the
publication contains a false statement 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." Jd. at 882.

The primary distinguishing factor between Peggy
Ault's case and the Falwell case is that there was a
specific jury finding that the publication about the Rev.
Falwell made no false statement of fact about him. To
the jury and to the courts, the Falwell publication was
parody--and the publication explicitly stated this. But
there has been no jury finding that there was no false
statement of fact about Peggy Ault. On the contrary,
the United States Court of Appeals for the Ninth Circuit
Observed that the words "initially convey a defamatory
meaning. . ." (Opinion, Appendix A, p. A-7.) Thus, the
words "initially" are false statements of fact about
Peggy Ault - but they somehow are magically

converted to protected opinion by virtue of their

19

placement in Hustler Magazine. This is in spite of the .
fact that, unlike Falwell, the "Asshole of the Month"
publication about Peggy Ault did nothing to identify
itself as opinion or editorial. It appeared as a report by
the editors of Hustler that Peggy Ault was, based on
facts known to them, a figure of contempt, a sexual
object subject to sexual arousal from underwear ads in
the newspaper, and certifiably mentally ill.

It is true that Falwell, supra, requires a false
statement of fact. Peggy Ault alleged that there were
false statements of fact about her. The appellate court
found the words "initially defamatory." For a claim of
intentional infliction of emotional distress, this should
be sufficient--coupled with the actual malice
requirement.

Even if all the statements about Peggy Ault
would be construed as opinion, they should be judged
sufficient for a claim of intentional infliction of
emotional distress. To this extent, Peggy Ault seeks
Clarification or a review of the result in Falwell, supra.

The requirement that a public figure prove
actual malice in a claim for intentional infliction of
emotional distress is sufficient protection for the
"breathing space" for free expression which Hustler

Magazine, Inc., v. Falwell, supra, establishes. It is

enough of a burden for a plaintiff, like Peggy Ault, to

20

prove such actual malice.8 And requiring proof of
actual malice in an intentional infliction of emotional
distress case is precisely the protection which this
Court has endeavored to offer publishers in New_York
Times _v. Sullivan, 376 U.S. 254 (1964), and its progeny.

In the context of an intentional infliction of

emotional injury claim, the gravamen of the claim is a
direct injury to the person's emotional status. Falwell
recognizes this, and recognizes the interest of the state
and individuals to protect people from unjustified
assaults. "Generally speaking the law does not regard
the intent to inflict emotional distress as one which
should receive much solicitude, and it is quite
understandable that most if not all jurisdictions have
chosen to make it civilly culpable where the conduct in
question is sufficiently ‘outrageous.'" Hustler Magazine,
Inc., v. Falwell, supra, at 108 S.Ct. 880.

A defamatory statement, whether it is a libel or

an opinion, can hurt an individual. Extension of the
cloak of Falwell to immunize all purported statements

of opinion from claims for intentional infliction of

8Peggy Ault has never admitted that she is a_ public
figure. The trial court ruled that she was a public figure
for issues related to the pornography controversy. The
Ninth Circuit decided that it was not critical to categorize
her either as a private person or a public figure, given
its finding that the publications were protected opinion.
"Thus we conclude that the opinion. privilege bars
recovery for intentional infliction of emotional distress
whether Ault is a public figure or a private person for
first amendment purposes and do not decide her status."
Opinion, Appendix A, p. A-6.

21

emotional distress gives the publisher unfettered.
power to hurt and leaves the victim without remedy.
The requirement of proof of actual malice is sufficient
protection for the publisher and it need not be
supplemented with convoluted, inconsistent extensions
of the doctrine of protected opinion.

The Court Should Review the Dismissal of Peggy Ault's
Other Claims for Invasion of Privacy

Public Disclosure of Private Facts
Both the trial court and the United States Court

of Appeals for the Ninth Circuit rejected Peggy Ault's
claims that Hustler’s treatment of her image and
Hustler’s statements about her amounted to a_ public
disclosure of private facts. The trial court's reasoning
was based on a purported failure of Peggy Ault to
allege that any of the facts stated about her were true.
The appeals court agreed and added that the
publication must be of private, not public facts. In
doing so, the United States Court of Appeals for the
Ninth Circuit erroneously’ interpreted Oregon
substantive law and ignored its own decision in Virgil
v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), cert. den.
425 U.S. 998.

The presentation of Peggy Ault's picture in the

naked rear end of a bent over man was a public
disclosure of her image to which she did not consent.
It was a humiliating presentation of her real image.
Although Peggy Ault had consented to the use of her
photograph by her local paper, the Willamette Weekly,

be

she believed that her photograph would be used solely
for that paper. These matters were pled and called to
the attention of the trial court. Peggy Ault's intent was
to have her image as private as possible, with the
single exception of a small town newspaper article
about her.

A line of decisions in Oregon and the Ninth
Circuit establishes a cause of action there for public
disclosure of private facts. Hinish v. Meier & Frank Co.,
166 Ore. 482, 113 P.2d 438 (1941); Tollefson v. Price,
430 P.2d 990 (Ore. 1967); Anderson _v. Fisher
Broadcasting Companies, Inc., 300 Ore. 452, 712 P.2d
803 (1986); and Capra _v. Thouroughbred Racing
Association of North America, Inc., 787 F.2d 463 (9th
Cir. 1986). Both Anderson, supra, and Tollefson, supra,

recognized that the words constituting the invasion of
privacy need not be alleged as true. In Tollefson, the

complaint specifically alleged that the statements in the

publication were untrue. Anderson, at 712 P.2d 814,
explicitly said that "the distressing report of
presentation of a person's private affairs might not be
truthful."

In Virgil v. Time, Inc., supra, the plaintiff had

first disclosed much _ personal information about
himself. He later had a change of heart and made it
Clear he did not want the information published. The
United States Court of Appeals for the Ninth Circuit
upheld his claims against Time _ for subsequent
publication of the information--observing that Virgil's

alla

23

cause of action most closely resembled a claim for.
public disclosure of private facts. The United States
Court of Appeals for the Ninth Circuit allowed a
withdrawal of Virgil's consent to make the information
public: “If consent is withdrawn prior to the act of
publicizing, the consequent publicity is without
consent." Virgil, supra, at 527 F.2d 1127.

In Virgil, the United States Court of Appeals for
the Ninth Circuit adopted the Restatement, Second,
Torts, Section 652D description of the tort, which,
among other things, does not require the allegation of

truthful disclosures or the disclosure of purely private

facts:

One who gives publicity to a matter
concerning the private life of another is subject
to liability to the other for unreasonable invasion
of his privacy if the matter publicized is of a kind
which:

(a) would be highly offensive to a
reasonable person, and

(b) is not of legitimate concern to
the public.

To Peggy Ault, even her image was private.
Otherwise, she would not have harbored the belief that
its use would be limited. The best indication of this
was her refusal to provide personal information to
"Century City Research," Hustler’s ruse research
organization. The use of her image, coupled with the
defamatory words against her, could be construed as

highly offensive to a reasonable person, and was not of

legitimate concern to the public.

24

Intrusion

Peggy Ault alleged that Hustler obtained a
private photograph of her through illegal means and
through fraudulent misrepresentation. An affidavit of
the photographer/reporter, Cathy Cheney, established
that Hustler had not truthfully represented itself when
she provided the photographs of Peggy Ault to
"Century City Research." Peggy Ault informed the trial
court, in argument, that she would demonstrate her
refusals to provide information to Hustler ("Century
City Research") herself.

This Court has acknowledged that "[A] complaint
should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can
prove not set of facts in support of his claim which
would entitle him to relief." Conley _v. Gibson, 355 U.S.
41, 45-46 (1957). Oregon has implicitly recognized the

Restatement, Second, Torts formulation of all the torts
of invasion of privacy in Humphers_ v. First Interstate
Bank, 68 Ore. App. 573, 684 P.2d 581, 588 (1984).

The Restatement version of Intrusion is:

One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is
subject to liability to the other for invasion of
his privacy, if the intrusion would be highly
offensive to a reasonable person.

Hustler's illegal and fraudulent conduct to obtain
Peggy Ault's photograph was highly offensive to her. It

should also be highly offensive to any other person

|

25

who believes that an essentially private person who .
explicitly refused to cooperate with Hustler ought to
have a right not to have her picture show up in a
nationally circulated pornographic magazine
Superimposed onto the naked rear end of a bent over
man.

The justification of the appeallate court for
disallowing the intrusion claim was that once Peggy
Ault consented to her photograph in the _ local
newspaper, it forever became public. "[W]hen a person
agrees to be photographed for a newspaper, the
photograph is not a_ private concern and _ its
republication does not create ground for liability."
Opinion, Appendix A. p. A-11. But this totally ignored
Peggy Ault's contentions that the photograph was
obtained illegally and fraudulently--as well as Peggy
Ault's representations that she would prove she
explicitly refused to give Hustler access to her
photographic image. It also ignored the Ninth Circuit's
own ruling in Virgil v. Time, Inc., supra, to the effect

that an individual may, at any time, withdraw his
consent for the public use of private information about
him.

Misappropriation of Image

The United States Court of Appeals for the Ninth
Circuit upheld the dismissal of Peggy Ault's claim for
misappropriation of image on the basis that Hustler's
use of her image was not solely for its commercial gain,

but rather to accompany a newsworthy article about

26

her. Peggy Ault asserts that pornography such as
Hustler should be treated strictly as commercial speech.
The dissenting comments of Judge Edith H. Jones in
Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1028
(Sth Cir. 1987) are particularly germane to this issue.

Judge Jones was discussing the decision of this Court in
Dun & Bradstreet _v. Greenmoss Builders, 472 U.S. 749
(1085), in which it was recognized that commercial

speech is not entitled to the same_ constitutional

protection as other speech:

Measured by this standard, both Hustler in
general and "Orgasm of Death" in particular
deserve limited only first amendment protection.
Hustler is a _ profitable commercial enterprise
trading on its prurient appeal to a small portion
of the population. It deliberately borders on
technical obscenity, which would be_ wholly
unprotected, to achieve its purposes, and its
appeal is not based on cognitive or intellectual
appreciation. Because of the solely commercial
and pandering nature of the magazine, neither
Hustler nor any other pornographic publication is
likely to be deterred by incidental state
regulation. No sensitive first amendment genius
is required to see that, as the Court concluded in
Dun & Bradstreet, "[t]here is simply no credible
argument that this type of [speech] requires
special protection to insure that ‘debate on public
issues [will] be uninhibited, robust and wide-
open. (Cites Dun & Bradstreet, supra.) Herceg v.

Hustler Magazine, Inc., 814 F.2d 1017, 1028 (Sth
Cir. 1987)

rere

27

Peggy Ault argued this concept to the United
States Court of Appeals for the Ninth Circuit, which
agreed in part. "While Hustler's objectives may well

have commercial overtones. . .". Opinion, Appendix A, p.
A-12. Peggy Ault pointed out that an attack on her
was a commercial assault, since she (and other
opponents of pornography) represented a threat to
Hustler's circulation.

Hustler should not receive’ special
treatment and a greater license to harm than other
publications. As argued above, the magical
transformation of the words about Peggy Ault--from
defamation to protected opinion--by their placement in
Hustler gives Hustler an unfair right to attack and
preferred constitutional treatment compared to _ the
legitimate press. Treatment of Hustler for what it is--
which is commercial speech for the sole purpose of
purveying its pornographic images of its models and its
enemies--would give some strength to the _ injured
person. It would also pierce the fiction that Hustler
misappropriated Peggy Ault's image for anything other

than a commercial purpose.

28

CONCLUSION

For the reasons above stated, Peggy Ault
respectfully requests this Court to issue a writ of
certiorari to review the decision of the United States

Court of Appeals for the Ninth Circuit.

Respectfully submitted,

G. L. Spence

Gary L. Shockey

SPENCE, MORIARITY & SCHUSTER
Counsel for Petitioner

APPENDIX - A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PEGGY AULT,
Plaintiff-Appellant,

Vs

No. 87-3684
HUSTLER MAGAZINE, INC.; FLYNT :
DisTRIBUTING Co., INC.; FLYNT _ D.C. No.
SUBSCRIPTION COMPANY, INC.; CITY CV-86-381-FR
OF ROSES NEWSPAPER CoO.; OPINION
WILLAMETTE WEEKLY; CATHY
CHENEY,

Defendants-Appellees.

—

Appeal from the United States Listr:. t Court
for the District of Oregc::
Helen J. Frye, District Judge, ) :cs:ting

Argued and Submiitec
April 7, 1988—Pasadena, Ca ‘ornia

Filed October 25, 198:

Before: Thomas Tang, Betty B. Fictch sr and
Harry Pregerson, Circuit Juczes

Opinion by Judge Tan.

13350 AULT V. HUSTLER MAGAZINE, INC.

SUMMARY

Affirming a judgment and reversing a judgment imposing
sanctions and attorney’s fees, the court held that a Hustler
Magazine article about appellant’s anti-pornography position
was constitutionally protected opinion.

Appellant Peggy Ault appeals the district court’s dismissal
of her invasion of privacy, libel, intentional infliction of emo-
tional distress, and trespass and conversion claims against
appellee Hustler Magazine, Inc. arising from the magazine's
depiction of her in its regular “Asshole of the Month” feature.
Ault organized opposition to an adult video-store and lobbies
the legislature to enact anti-pornography measures. When
Hustler Magazine featured Ault as “Asshole of the Month,”
the article was accompanied by Ault’s photograph superim-
posed over the rear-end of a bent-over naked man. The article
also discussed Ault’s anti-pornography activities and charac-
terized her organization as a “wacko group” engaging in cen-
sorship. Ultimately, as a result of Ault’s third amended
complaint, the court imposed sanctions on Ault and her attor-
ney for filing frivolous claims and awarded attorney fees to
Hustler. :

[1] If the challenged statement constitutes the expression of
an opinion rather than fact, then under the first amendment
it cannot give rise to a defamation claim. Nor can an opinion
form the basis of a claim for invasion of privacy by placing a
person in a false light. Nor can privileged opinion support a’
claim for intentional infliction of emotional distress. [2] A
three-prong test is used to determine whether the substance of
a publication is fact or opinion. [3] The article states an opin-
ion. Publication in Hustler creates a context which robs the
statements of defamatory meaning because the statements
will be taken as statements of Hustler’s opinion of Ault. Sec-

A-2

AULT V. HUSTLER MAGAZINE. INC. 13351

ond, there is a heated and spirited debate on pornography of
which this article is a part, and in which epithets, fiery rheto-
ric and hyperbole are expected. Third, the offending phrases
in the article are representative of the type of language gener-
ated in a dispute over such a subject. [4] The Hustler article
about Ault is constitutionally protected opinion and as such
forecloses Ault’s claims. [S$] Ault unsuccessfully alleged the
public disclosure of any true private facts. [6] The district
court properly dismissea the claim of intrusion because Ault
did not allege any facts to support it. [7] The district court
properly dismissed the claim of misappropriation because
Hustler did not use the photograph jor its Gwn commercial
gain. but to accompany a newsworthy article about Ault.

COUNSEL

Gary L. Shockey, Spence, Moriarity & Schuster, Jackson,
Wyoming, for the plaintiff-appellant.

David O. Carson, Beverly Hills, California, for the
defendants-appellees.

OPINION
TANG, Circuit Judge:

In this diversity action, Ault appeals the district court’s dis-
missal of her invasion of privacy, libel, intentional infliction
of emotional distress, and trespass and conversion claims
against Hustler Magazine, Inc. arising from the magazine’s
depiction of her in its regular “Asshole of the Month” feature.
Ault also appeals the court’s dismissal of Larry Flynt and
L.F.P., Inc. for lack of personal jurisdiction, and the award of
sanctions against Ault and her attorney. We affirm in part and
reverse in part.

13352 AULT V. HUSTLER MAGAZINE, INC.

BACKGROUND

Peggy Ault founded the Citizens in Action for Clackamas
County, Oregon, headquartered in Milwaukie, Oregon, to
organize opposition to an adult video-store. As a member of
this organization, Ault has participated in picketing adult
stores. She is apparently also involved in Citizens for Legisla-
tion Against Decadence through which she lobbies the legisla-
ture to enact anti-pornography measures. In recognition of
her activities Ault was interviewed by the newspaper, Wil-
lamette Week, and her photograph accompanied the resulting
article.

In its April 1985 issue, Hustler Magazine published an arti-
cle featuring Peggy Ault as “Asshole of the Month.” The arti-
cle is accompanied by a small photograph of Ault
superimposed over the rear-end of a bent-over naked man.
The article discusses Ault’s anti-pornography activities and
characterizes her organization as a “wacko group” engaging
in censorship and intimidation tactics with plans to under-
mine first amendment freedoms. The article portrays Ault as
a “tightassed housewife,” “frustrated,” “threatened by sex,” a
“fanatic,” a “crackpot” and a “deluded busybody” in need of
“professional help.”

Ault initially sued in state court and the Hustler defendants
removed to federal court. The original complaint included
claims for intentional infliction of emotional distress, inva-
sion of privacy, libel, outrage, trespass, conversion, interfer-
ence with first amendment rights, obscenity and joint and
several liability. After Ault filed a second amended complaint
correcting a clerical error (i.e., the inadvertent inclusion of
claims from another complaint), the district court dismissed
the claims for libel and intentional infliction of emotional dis-
tress as barred by the statute of limitations, and the claims for
trespass and conversion for failure to state a claim. It dis-
missed defendants Larry Flynt and L.F.P., Inc. for lack of
personal jurisdiction. In her third amended complaint Ault

AULT VY. HUSTLER MAGAZINE, INc. Vea 13353

re-alleged all four forms of invasion of privacy and the dis-
trict court dismissed the complaint. The court also imposed
sanctions on Ault and her attorney for filing frivolous claims
and awarded attorney fees to Hustler for time spent respond-
ing to the erroneous first amended complaint.

The court entered a final judgment dismissing the action on
March 9, 1987. Ault timely appeals challenging all rulings of
the district court.

DISCUSSION

I. Libel, False Light, and Intentional Infliction of Emotional
Distress

{1} As a threshold matter we must determine whether the
Hustler article constitutes the expression of an opinion rather
than of factual statements. The distinction is crucial because
if a challenged statement is one of opinion rather than fact,
then under the first amendment it cannot give rise to a defa-
mation claim. Greenbelt Cooperative Publishing Ass’n Inc. v.
Bresler, 398 U.S. 6, 14 (1970). Opinions are constitutionally
privileged because, in the Supreme Court’s oft-reiterated
view, under the first amendment there is no such thing as a
false idea. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40
(1974). We have explained that “[b]ecause a statement must
be false to be actionable defamation, Restatement (Second) of
Torts § 558(a)(1977), an opinion is simply not actionable
defamation.” Lewis v. Time Inc., 710 F.2d 549, 553 (9th Cir.
1983). It is likewise clear that a constitutionally privileged
statement of opinion cannot form the basis of a claim for
invasion of privacy by placing a person in a false light. Time,
Inc. v. Hill, 385 U.S. 374, 387-88 (1967). Nor can privileged
opinion support a claim for intentional infliction of emo-
tional distress. Hustler Magazine, Inc. v. Falwell, 108 S. Ct.
876 (1988). Falwell holds “that public figures and public offi-
cials may not recover for the tort of intentional infliction of
emotional distress by reason of publications such as the one

Ww

A-

13354 AULT V. HUSTLER MAGAZINE, INC.

here at issue without showing in addition that the publication
contains a false statement of fact which was made with ‘actual
malice,’ /.e., with knowledge that the statement was false or
with reckless disregard as to whether or not it was true.” /d.
at 882.

Falwell clearly holds that the opinion privilege applies by
barring an emotional distress action brought by a public fig-
ure. We have sa’. that the privilege also applies by barring a
defamation actio” Srought by a private person. Lewis, 710
F.2d at 553.' Thus we conclude that the opinion privilege
bars recovery for intentional infliction of emotional distress
whether Ault is a public figure or a private person for first
amendment purposes and we do not decide her status.

It is our usual practice to apply the constitutional defense
of privileged opinion without first analyzing whether the
statements in question are actionable under state law. See
Koch v. Goldway, 817 F.2d 507, 508 (9th Cir. 1987)
(indicating that California courts conflate common law prin-
ciples and constitutional doctrine on the definition of opin-
ion). It is well settled in this Circuit that the fact or opinion
distinction in diversity cases is to be decided as a question of
federal law. Jd. at 509 (citing Lewis, 710 F.2d at 555). Accord
Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1016 (1st Cir.
1988). petition for cert. filed, May 26, 1988: Ollman v. Evans,
750 F.2d 970, 978 (D.C. Cir. 1984)(en banc)(whether a
printed statement is protected opinion or an unprotected fac-
tual assertion is a matter of law for the court), cert. denied,
471 U.S. 1127 (1985).

[2] In general “[s]tatements not themselves factual, and
which do not suggest that a conclusion is being drawn from

1There 1s no independent cause of action for intentional infliction of
emotional distress based on the very same acts which are insufficient to sup-
port an action for defamation. F/ynn v. Higham, 149 Cal. App. 3d 677, 681,
197 Cal. Rptr. 145. 147 (1983).

cea ieialiaeaaialuaianiddaaleaueaaiia

AULT V. HUSTLER MAGaZINE, INC. 13355

facts not disclosed in the statement, are commonly state-
ments of opinion, not fact.” Koch, 817 F.2d at 509. The three-
prong test of whether the substance of a publication is fact or
opinion is: (1) whether the words can be understood in a
defamatory sense in light of the facts surrounding the publica-
tion, including the medium by which and the audience to
which the statement is disseminated; (2) whether the context
in which the statements were made, e.g., public debate or a
labor dispute, would lead the audience to anticipate persua-
sive speech such as “epithets, fiery rhetoric or hyperbole”;
and (3) whether the language used is the kind generated in a
“spirited legal dispute.” Lewis, 710 F.2d at 553 (citing
Information Control Corp. v. Genesis One Computer Corp.,
611 F.2d 781, 783-84 (9th Cir. 1980)).

Ault argues that under this test: (1) it is clear that any rea-
sonable person would infer a defamatory meaning in these
words; (2) the article is not part of a public debate in which a
participant can be excused for intemperate language: and (3)
nothing in the language of the article gives any indication that
this is an editorial or opinion piece.

[3] We agree with the district court’s application of the test
finding that the article states an opinion. First, although we
agree with Ault that the words initially convey a defamatory
meaning, when the facts of publication are considered the
words assume the character of protected opinion. Publication
in Hustler, a magazine known for its pornographic content
and directed to an audience sympathetic to pornography,
creates a context which robs the statements of defamatory
meaning because the statements will be taken as statements of
Hustler’s opinion of Ault, not as facts about her personal rea-
sons for opposing pornography. We are particularly per-
suaded to this view because the article appeared in a regular
monthly feature routinely devoted to lampooning opponents
of pornography and critics of Hustler Magazine. See Fudge,
840 F.2d at 1017 (certain genres of magazine features are so
familiar to the audience that a reader reasonably knows they

A= 7.

13356 an AULT V. HUSTLER MAGAZINE, INC.

express opinions not facts). Second, we must reject Ault’s
effort to limit the meaning of “public debate” to an oral, con-
temporaneous exchange of ideas. We think it is clear that
there is a heated and spirited debate on pornography of which
this article is a part, and in which epithets, fiery rhetoric and
hyperbole are expected. Third, although it is true that the
Hustler feature did not include a disclaimer overtly identify-
ing it as opinion, this misses the point of the third prong of the
test of opinion. The offending phrases in this article are,
unfortunately, representative of the type of language gener-
ated in a dispute over such a subject. See Koch, 817 F.2d at
510 (It is unfortunate that the legal category of opinion must
be used to describe a statement that is no more than “a
vicious slur” but “[b]ase and malignant speech is not neces-
sarily actionable.”).

[4] Our holding that the Hustler article about Ault is consti-
tutionally protected opinion forecloses her claims for libel,
for invasion of privacy by placing her in a false light and for
intentional infliction of emotional distress. We affirm the dis-
trict court’s dismissal of these claims on grounds other than
those employed by the district court. See Golden Nugget, Inc.
v. American Stock Exchange, Inc., 828 F.2d 586, 590 (9th Cir.
1987)(we may affirm the judgment of the district court on any
basis finding support in the record). For this reason we do not
reach the court’s rulings that the libel action is barred by the
statute of limitations or that the intentional infliction of emo-
tional distress claim must be dismissed because it is based on
the same facts as the libel claim.

II. Other Tort Claims

A. Public disclosure of private facts

A dismissal for failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)(6) is a legal rpling reviewed de novo. Church of

Scientology v. Flynn, 744 F.2d 694, 695 (9th Cir. 1984). “[A]
complaint should not be dismissed for failure to state a claim

A-8

ee

AULT V, HUSTLER MAGAZINE, INC. 13357

unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All alle-
gations in the complaint must be treated as true. Flynn, 744
F.2d at 696.

[5] Ault’s claim of public disclosure of private facts is the
only claim that survived the district court’s October 20, 1986
dismissal. The district court ultimately dismissed this claim
because Ault did not successfully allege the publication of any
true private facts. We agree with the district court’s finding.
The factual statements about Ault’s involvement in anti-
pornography organizations are not statements of private
facts, nor are the facts that Ault reads the newspaper and
removes ads for lingerie before letting her children read the
paper. In a claim for invasion of privacy by publication of
facts, the facts disclosed must be private, not public. Tollefson
v. Price, 247 Or. 398, 401, 430 P.2d 990, 992 (1967); Trout v.
Umatilla Co. School Dist., 77 Or. App. 95, 712 P.2d 814, 817
(1985), review denied, 300 Or. 704, 716 P.2d 758 (1986).

Ault argues that a true picture of her was published and that
a true statement (that she reads the newspaper and cuts out
certain ads) was linked with a false and derogatory inference
that she was sexually aroused “as she cruimpled up those
offending undies ads” to create the impression that a private
fact was being revealed. Further, Ault argues that the truth of
the statements need not be pleaded under Oregon law, citing
Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438
(1941), Hamilton v. Crown Life Ins. Co., 246 Or. 1, 423 P.2d
771 (1967), Tollefson v. Price, 247 Or. 398, 430 P.2d 990
(1967), and Anderson vy. Fisher Broadcasting Co., 300 Or. 452,
712 P.2d 803 (1986). But, as Anderson clearly states, the ear-
lier cases did not involve the truthful publicizing of private
facts. 712 P.2d at 806. Anderson holds that in Oregon there is
no common-law tort liability for truthful presentation of pri-
vate facts unless the defendant’s conduct in obtaining or pub-

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13358 AicitT Vv. HUSTLER MAGAZINE. INC.

lishing the information is wrongful in some other respect. /d.
at 814.

Ault construes a portion of Anderson to hold that there is a
cognizable claim for public disclosure of private facts and
that such disclosure of “private affairs might not be truthful.”
Id. This is a misreading of Anderson. The Oregon Supreme
Court held there is no recovery for truthful publication and
then went on to enumerate the other types of wrongdoing that
could lead to recovery for the emotional injury resulting from
a publication. /d. As a final note it indicated that there could
be recovery for publication of false information, as in Hinish
or Tollefson, but these claims would not be denominated
“public disclosure of private facts.”

B. IJntrusion

6] The district court properly dismissed the claim of intru-
sion because Ault did not allege any tacts to support it. Ault
relies on Restatement (Second) Torts § 652B (1977), which
says

One who intentionally intrudes, physically or other-
wise, upon the solitude or seclusion of another or his
private affairs or concerns, is subject to liability to
the other for invasion of his privacy, ifthe intrusion
would be highly offensive to a reasonable person.

See Trout, 77 Or. App. at 99, 712 P.2d at 817 (Oregon court
cites this section as the law in Oregon).

Ault contends that the Hustler defendants intruded on her
“by fraudulently misrepresenting who they were to get a non-
public picture of her,” and also by prying into her life and per-
sonal affairs. The depiction in the picture and words was
intended to make “its readers look at Peggy Ault in the same
light that they look at the naked models in the magazine - as
objects, unworthy of intellectual respect and worthy only of

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SF

AULT V. HUSTLER MAGAZINE, INC. 13359

sexual contempt.” While this may be a reasonable interpreta-
tion of the purpose of the article, the facts do not fit the ele-
ments of the tort of intrusion. The means Hustler used to
obtain the photograph is not actionable as an intrusion into
Ault’s privacy because when a person agrees to be photo-
graphed for a newspaper, the photograph is not a private con-
cern and its republication does not create ground for liability.
Brewer v. Hustler Magazine, Inc., 749 F.2d 527, 530 (9th Cir.
1984): Gill v. Hearst Publishing Co., 40 Cal. 2d 224, 253 P.2d
441, 444-45 (1953).?

C. Misappropriation

[7] The district court properly dismissed the claim of mis-
appropriation because Hustler did not use the photograph for
its own commercial gain, but to accompany a newsworthy
article about Ault. The tort of wrongful appropriation
requires that the defendant appropriate the plaintiff's likeness
to his own use or benefit. Restatement (Second) Torts § 652C.
It has generally been held that this tort is “not applicable
when a person’s picture is used to illustrate a non-
commercial, newsworthy article.” Martinez v. Democrat-
Herald Pub. Co., 64 Or. App. 690, 693, 669 P.2d 818, 820,
review denied, 296 Or. 120, 672 P.2d 1193 (1983); also see
Anderson, 300 Or. 452, 712 P.2d at 813 (“Publication of...
[a] photograph is not appropriation for commercial use sim-
ply because the medium itself is operated for profit.”)
Anderson holds that using a picture without consent is action-
able only when it injures the economic interests of the plain-
tiff due to commercial exploitation, or when the “picture was
either obtained or broadcast in a manner or for a purpose
wrongful beyond the unconsented publication itself.” 712
P.2d at 813.

It makes no difference to this analysis that the photo Hustler used was
not the same one used by the Willamette Weck, since both photos were in
the photographer's possession and were very similar.

A-11

13360 AULT V. HUSTLER MAGAZINE, INC.

Ault argues that there is a commercial purpose here
because Hustler wants to destroy the anti-pornography move-
ment to enhance its profits, and lampooning Ault is one
means to that end. While Hustler’s objectives may well! have
commercial undertones, the article, as an expression of con-
stitutionally protected opinion on a matter of public interest,
is “newsworthy.”

D. Trespass and Conversion

The district court properly found that Ault failed to state a
claim for trespass upon her personal right to her photograph
or for conversion of her personal property right in her photo-
graphic image. Trespass is an invasion of a possessor’s inter-
est in land. Frady v. Portland General Elec. Co., 55 Or. App.
344, 637 P.2d 1345, 1349 (1981). Conversion requires the
intentional exercise of dominion and control over a chattel.
B & L Furniture Co. v. Transamerica Ins. Co., 257 Or. 548,
480 P.2d 711, 712 (1971). While the photograph might be
viewed as a chattel, it was the property of the photographer,
not of Ault, so there was no conversion of Ault’s chattels.’

Ill. Sanctions

Awards of sanctions and attorney fees are reviewed for an
abuse of discretion. Zaldivar v. City of Los Angeles, 780 F.2d
823, 828 (9th Cir. 1986); Beaudry Motor Co. v. ABKO Proper-
ties, Inc., 780 F.2d 751, 756 (9th Cir. 1986), cert. denied, 107
S. Ct. 100 (1986). However, the legal conclusion that facts
constitute a violation of Rule I1 is reviewed de novo.
Zaldivar, 780 F.2d at 828.

The district court awarded Rule 11 sanctions based on
Ault’s allegedly frivolous claims of (1) interference with con-

3Because we find the district court properly dismissed all of Ault’s claims,
we need not consider the issue of the court’s personal jurisdiction over
Larry Flynt.

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AULT V. HUSTLER MAGAZINE. INC. 13361

stitutional rights; (2) a civil claim based upon violation of
obscenity statutes; and (3) joint and several liability against a
local distributor. Ault argues that all of these liability theories
were legally reasonable.

Under the standards of Za/divar, 780 F.2d at 828, Golden
Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1542
(9th Cir. 1986), and Hurd v. Ralphs Grocery Co., 824 F.2d 806
(9th Cir. 1987) we do not agree that sanctions are appropriate
for the filing of these claims. Although counsel failed to
defend these claims in the memorandum filed in response to
Hustler’s motion to dismiss, the inquiry into the propriety of
Rule 11 sanctions for filing frivolous claims is whether a rea-
sonably competent attorney would believe at the time of the
filing that the plaintiff had a legal right under “existing law”
or a “good faith argument for the extension, modification, or
reversal of existing law.” Za/divar, 780 F.2d at 830. The fail-
ure to cite authority for certain claims is not dispositive of
whether the claims had a legal foundation. In a case of this
sort, where the plaintiff has clearly suffered a grievous assault
to her human dignity we do not wish to endorse sanctions
which can only serve to chill zealous advocacy. See Hurd, 824
F.2d at 810-11. That the law does not offer protection from
such disgusting and distasteful abuse is not to say that argu-
ments for its extension are wholly unreasonable. /d. at 811.

The court also imposed Rule |! sanctions because Ault’s
counsel filed an erroneous First Amended Complaint without
reading it. Although we do not condone carelessness, the
error was Clearly clerical in nature, resulting from a wrong sig-
nal to a word-processer that caused extraneous material to be
included in the First Amended Complaint. We do not think
it the type of error for which Rule 11 sanctions were intended.
The Hustler attorneys could have avoided expending time
answering the complaint and preparing a motion to dismiss
if they had simply notified Ault’s counsel of the obvious error.

A-13

aes «oo 2.”

13362 AULT Vv. HUSTLER MAGAZINE, INC.

CONCLUSION

The dismissal of the claims is AFFIRMED and the imposi-
tion of sanctions and attorney fees is REVERSED.

>

14

APPENDIX - B

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0786%3A1. Public record. Not legal advice.