Opposition Brief — Hustler Magazine, Inc. v. Douglass

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Supreme Court, U.S.

- i } i 3) D>

A 7

No. 85-862

woSECiLE SPANIOL, JR.

CLOARAR

IN THE ,

Supreme Court of the United States

OCTOBER TERM, 1985

HUSTLER MAGAZINE, INC..,

Petitioner

ROBYN DOUGLASS,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

WILLIAM D. SERPICO

SERPICO, NOVELLE, DVORAK

& NAVIGATO, LTD.

61 West Superior Street

Chicago, Illinois 60610

(312) 787-1600

Attorney for Robyn Douglass

RU 0 ne RS EO RE RRL ATI a

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

py SP Be me A ty gf | yy | ne

STATEMENT OF THE CASE...

A. Statement of Facts

B. Proceedings in the District Court ............0000000....

C. Proceedings in the Seventh Circuit -......0000..........-

ARGUMENT IN RESPONSE TO HUSTLER’S PE-

TITION FOR A WRIT OF CERTIORARI ...............

II.

CONCLUSION

The Respondent’s Cause Of Action For False

Light Invasion Of Privacy And Wrongful Ap-

propriation Of Her Name And Likeness Is

Premised Upon The Falsity Of The Publication

And Not The Context Of The Publication It-

EN Re PRC ERE ST OF ES RT STR a ae a

The Seventh Circuit Applied The Proper Stand-

ard Of Actual Malice. Furthermore, The Ulti-

mate Disposition Of The Appellate Court In

Remanding This Cause For A New Trial Has

Rendered The Argument Presented In Hustler’s

IO TEED POO ATI

Page

TABLE OF AUTHORITIES

Cases: Page

Ann-Margret v. High Society Magazine, Inc., 498

F. Supp. 401 (S.D.N.Y. USBO). .....---.<...sesecceesocsssss 15

Benally v. Hundred Arrows Press, Inc., 614 F.

Supp. 060 (D.C.IBE. OGG) an. nccccnsneinseccesenssssesess 16

Curtis Publishing Co. v. Butts, 388 U.S. 130

CIDER D oae..cscsarceentenibinciaieuicomsieiaaainn 12

Faloona v. Hustler Magazine, Inc., 607 F. Supp.

DEAR CDC. Teme, LGD nciccvssiicceretinninectcee-essmrennsens 16

Falwell v. Penthouse International, Ltd., 521 F.

Supp. 1BO4 CWA. Va. LGB) aienccecececsneserenencncessescncns 15

Faucheux v. Magazine Management, 5 Med. L.

Rptr. 1607, (IE.D.La. 1970) 2... cncersnicvsceseesssenese 15

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)... 12

Goelet v. Confidential, Inc., 5 App. Div. 2d 226,

171 N.Y.S.2d 228 (N.Y.App. 1958) .......-............. 15

Leopold v. Levin, 45 Ill.2d 434, 259 N.E.2d 250

¢) (|) es 17

Namath v. Sports Illustrated, 48 App. Div. 2d 487,

363 N.Y.S.2d 276 (N.Y.App. 1976) ..................... 16

New York Times Co. v. Sullivan, 376 U.S. 254

| PE Sen LE BETA OeS 18

Sherwood v. McGowan, 3 Misc.2d 234, 152 N.Y.S.

Qa SEB Cian. GR. BOG sinccicicicimntescssrenetectseeenictiene 16

Time, Inc. v. Hill, 385 U.S. 374 (1967) ..................- 12

Vitale v. National Lampoon, Inc., 449 F. Supp.

463 CUD. Tem. CTO vncccckicentniaeneetoanisin 16

Other:

Restatement (2nd) of Torts, §652E (1976) ........ 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-862

HUSTLER MAGAZINE, INC.,

Petitioner

Vv.

ROBYN DOUGLASS,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

The Respondent, ROBYN DOUGLASS, pursuant to

order of this Court, respectfully submits the following

Response to the Petition of HUSTLER MAGAZINE,

INC. for a Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit. Hustler has peti-

tioned this Honorable Court to review the decision of the

Seventh Circuit which has reversed a judgment rendered

in favor of Douglass and remanded this matter for a new

trial on account of procedural errors occurring at trial.

Subsequent to the Seventh Circuit’s original disposition

of the appeal, Hustler filed a Petition for rehearing with

a suggestion for rehearing in banc. This petition was

denied. It is from this order that Hustler files the in-

stant petition for a writ of certiorari.

STATEMENT OF THE CASE

It is necessary for the Respondent to provide this

Court with a statement of the case due to numerous

misstatements of fact and misrepresentations of the rec-

ord contained in Hustler’s statement of the case pre-

viously filed with this Court. A careful reading of the

Seventh Circuit opinion, supplemental order, and the

Memorandum Order of the trial judge at the District

Court level (these opinions appear at pages la through

46a of Hustler’s petition) clearly reveals these shortcom-

ings as well as other misrepresentations of the various

issues presented by the Douglass claim. The same argu-

ments presented by Hustler in this Court have already

been heard and rejected by the jury, the District Court

and in two separate opinions authored by the Court of

Appeals for the Seventh Circuit. Nevertheless, Hustler

presses forward in its attempt to find a sympathetic

forum.

A. Statement of Facts

At the time of trial, ROBYN DOUGLASS was a 31

year old commercial and movie film actress. (T. 39, 40).

She grew up in the San Francisco area and relocated to

Chicago to pursue a career as a print model. (T. 43-45).

Douglass appeared as a model in assorted print media

between the years 1974 to 1977. (T. 44, 49, 484, 487).

During this period, she appeared in Playboy Magazine,

including an appearance on the cover in December, 1974.

(T. 50, 45, PX 1). She stated she was proud of this

appearance, as was her family, due to the prestige of the

Magazine and the association it brought with more fa-

mous and well known personalities who had previously

appeared on the cover of Playboy. This was true even

though the only identification of her was contained in

the cover credits located inconspicuously on a separate

page of the Magazine. (T. 45-47, 399, 492 PX 1, DX 2).

In 1974, Playboy Magazine planned to publish two

thematic pictorials. These were given the working titles

of “Ripped-Off Pictorial” and “Water and Sex Pictorial,”

respectively. (T. 179-180, 190-191, 535). Augustin Greg-

ory, a freelance photographer at that time, was commis-

sioned by Playboy Magazine to submit photographs con-

sistent with these themes. (T. 181). Playboy Models,

Ine., one of the modeling agencies with which ROBYN

DOUGLASS was associated, assigned her as a model to

appear for these pictorials. (T. 61, 91).

The shooting session for “Ripped-Off Pictorial” took

place on August 6, 1974. Contrary to Petitioner’s inap-

propriate editorializing regarding the content of these

photographs, the artistic concept of this session was that

of a very feminine, soft focus portrayal of two women

gently tugging or pulling at each others underclothing.

(T. 66, 506). Following this session, the other model,

Mary Ann Esterle Halpin, and ROBYN DOUGLASS

signed standard Playboy Magazine releases assigning to

it the license and right to use, publish and distribute

these photographs. However, both models retained all

ownership interest in said photographs. (T. 302, 377,

472, PX 8, PX 15). Neither model, nor Playboy gave

Gregory, or Hustler any right to use any photographs

taken during this session. (T. 450, 509, 511, 512). Au-

gustin Gregory also released and assigned all his pho-

tographer’s rights to these photos to Playboy Magazine.

(T. 186-188).

The shooting of the “Water and Sex Pictorial’ was

also taken at Gregory’s studio on November 8, 1974. (T.

87-89). This was another Playboy Models, Inc. assign-

ment in which Douglass appeared under a shower wear-

ing a yellow raincoat. Similar releases were given to

Playboy by both the photographer and Douglass after

this session. (T. 91-99, 508-509, 630-637). Again, at no

time was Gregory or Hustler given permission to use

these photographs by either Douglass or Playboy Maga-

zine. (T. 110, 192).

Only one photograph from the “Ripped-Off Pictorial”

was published by Playboy Magazine. This photo ap-

peared in the March, 1975 issue. (T. 73, 76, 82, 189,

PX 11, PX 12). Neither the published photo nor the

accompanying text identified the models by name. In

fact, ROBYN DOUGLASS was not identifiable in any

photo ever published in Playboy Magazine or Oui (a

Playboy subsidiary) except for two update features fo-

cusing on the career progressions of models previously

appearing in the Magazine. However, these were pub-

lished years after the photos in issue were taken. (T.

489-491, DX 1, DX 3). No pictures taken at the “Water

and Sex Pictorial” were ever printed in Playboy. (T.

12).

Between 1976 and 1977, Douglass began to phase out

her print modeling career and began to devote more time

to a commercial acting career in Chicago as well as a

career in Los Angeles in dramatic acting. (T. 50, 119-

121). Her career blossomed in 1979 when Douglass ap-

peared as the female lead in the movie “Breaking

Away.” This moive led to an appearance on a television

show that year, “Battlestar Galactica”. (T. 121, 468).

The advertising community loved the movie and Douglass

actively promoted these credits to them, resulting in bet-

ter quality and higher paying commercial work. (T. 112,

121).

In March, 1980, during that same period of time, Au-

gustin Gregory was hired as photo editor of Hustler

Magazine. Gregory was hired by Bruce David, Editor

and Associate Producer, Lee Quarnstrom, Managing

Editor, and Althea Flynt, Publisher. During the negotia-

tions regarding Gregory’s hiring, he was advised by these

top-level Hustler executives that Hustler was looking

to upgrade its image. It was thought that celebrity

photos would accomplish this purpose. (T. 541-542, 546,

585, 1004). Gregory showed a sample of his photographs

at this meeting, including slide photographs of Douglass

taken at the two photo sessions described above. The

idea of publishing these photos was initiated at that

time by Lee Quarnstrom. (T. 544-546, 555-556).

Gregory subsequently sold these photographs to Hustler

while employed by Hustler and in connection with his

assigned objective to improve the Magazine’s image. He

received a manual check for the photos in order to ex-

pedite payment due to a falling out that he had because

of creative differences which forced him to leave the

Magazine in September, 1980.

Although it is the admitted policy of Hustler to never

publish any photograph without a release accompanying

photographs, an interoffice memo dated March 24, 1980 was

circuiated indicating that the publication of the Douglass

photos had already been committed to publication, al-

though they would be delayed one month. That same

memo directed Gregory to continue efforts to locate re-

leases for these photos. The publication of the photo-

graphs was committed to long before Hustler received

any purported releases, contrary to its own stated policy

of never publishing any photos without releases accom-

panying them. (T. 550, 590, 1016, PX 46). Hustler

explained the delay in publication not because of the ab-

sence of releases, but rather because Hustler had “better

material.” (T. 551). On August 28, 1980, a second inter-

office memo indicates that the releases still had not

yet been produced. (T. 551, 555, PX 47). Preparatien

for the publication of Hust:.» began four to six months

in advance of the issue date. The issue date of the

Hustler Magazine of which Douglass complains was Jan-

uary, 1981. Thus, the work on that particular issue

began as early as June, 1980. (T. 539, 558-559, 955).

Moreover, the December, 1980 issue of Hustler contained

a prominent announcement that Douglass would appear

as a “Hustler Celebrity Exclusive” in the January, 1981

issue. As a result of this lead time, Hustler was com-

mitted to the publication of these photographs as early

as May, 1980, a full five months before Hustler was al-

legedly provided with releases. (T. 101, 967-968, PX

18, PX 19).

In September, 1980, releases purporting to have been

signed by Douglass were allegedly delivered by Gregory

to Hustler. (T. 559). However, Hustler failed to pro-

duce the original releases. Instead, it merely produced

at trial, photocopies of the alleged releases. (T. 911). One

copy was declared a forgery by a handwriting expert.

The other copy was of such poor quality that the expert

could render no opinion. (T. 912). However, both re-

leases, including the less discernible document, were iden-

tified as forgeries by Douglass. (T. 159).

At trial, when Augustin Gregory was tendered these

photocopies of releases, he was unable to identify them

as being the ones he allegedly turned over to Hustler.

(T. 620). Gregory doubted that these were copies of the

releases he tendered due to the fact that he never iden-

tified his business as “Augustin Gregory Photo.” (T.

628). He further testified that it was his standard busi-

ness practice to obtain model signatures on all releases

the day of the shoot and before the model left his

studio. (T. 641-642). The “Ripped Off Pictorial” was

shot on August 6, 1974 and the “Water and Sex Pic-

torial” took place on November 8, 1974. Yet the forged

releases are dated November 12, ard 16, 1974, respec-

tively. (T. 73, 95, 629).

In Hustler’s exuberance to ride the coattails of Doug-

lass’ “Breaking Away” accomplishment, it overlooked

the other model who appeared at the “Ripped-Off Pic-

torial,” Mary Ann Esterle Halpin. Kelly Garrett, an

editor at Hustler Magazine testified that the two re-

leases purportedly signed by ROBYN DOUGLASS were

the only ones provided to Hustler by Gregory. (T. 945,

948, 970). Yet, neither of these two releases were

from the “other model.” Hustler admitted it was im-

portant to obtain her release as well. (T. 1017). It was

the responsibility of Bruce David, the Editor and Asso-

ciate Publisher, to obtain these releases. (T. 1017). Yet

he cannot recall seeing any release from the second

model. In fact, Hustler never even knew the name of

the “other girl” in the photos. (T. 1020, PX 21, PX 22,

PX 46).

Douglass first received notice that Hustler was going

to publish the photos of her from her friend, Joel Cory,

on November 14, 1980. Cory received the information

from a friend who had seen the December, 1980 issue of

Hustler advertising the inclusion of Douglass’ photo-

graphs, billed as a “Hustler Celebrity Exclusive.” (T.

608). Douglass purchased the December, 1980 issue and

discovered Gregory’s name as Photo Editor. She at-

tempted to obtain the January, 1981 issue but it had

not been released to the public either through news-

stand sales or by subscription mailing. (T. 106, 154-

158). A news-vendor in Evanston did her “a favor” and

released a copy of the January issue to her. (T. 106-

108, 728; PX 21). She went home and called her attor-

ney, Anthony Onesto. (T. 104, 110). Mr. Onesto testified

that Douglass was very upset, and requested that he

have publication and distribution of this issue stopped

before it was distributed for public sale. (T. 105, 110,

149).

On November 17, 1980, Onesto contacted the attorney

for Hustler and requested that Hustler stop the publica-

tion because it did not have any right to publish the

photographs. Hustler’s attorney responded that tne Maga-

zine ~.* proper releases and would in fact, distribute the

publi. « on as planned. (T. 152). On November 21, 1980,

Onesto received from Hustler two releases which bore the

purported signature of Robyn Douglass. (T. 155; PX 29,

PX 30, PX 31). Douglass denied at that time that the

signatures on the documents were hers and declared them

forgeries. (T. 159). Onesto immediately called Hustler’s

attorney on either November 23rd or November 24th and

apprised him of this fact, demanding Hustler not publish

or distribute the issue with the Douglass feature. This

was ignored. (T. 161).

Hustler’s petition asserts that when Douglass instructed

the Magazine not to publish, it was too late to recall the

issue. However, there is no evidence of this nor does

Petitioner cite any authority in the record for this state-

ment. Hustler’s Petition further ignores Gregory’s state-

ment that when he delivered the purported releases to it,

he instructed Hustler to contact Douglass for approval.

(T. 647). Hustler, however, made no effort to contact

Douglass at that time nor did Hustler ever check with

Gregory regarding the authenticity of the purported re-

leases when informed by Onesto in November, 1980. (T.

648).

The photographs published by Hustler Magazine in its

January, 1981 issue were accompanied by copy written

by Bruce Helford, an editor of Hustler. In its Petition,

Hustler attempts to sanitize for this Court the text

written by Helford and the inferences to be drawn from

that copy. At page 5 of Hustler’s Petition is found the

language of the copy of which Douglass complains. Hus-

tler presents this copy in a piecemeal way, omitting the

full passage, and attempting to place it in a complimen-

tary light. It tries to persuade this Court to draw from

this text inferences which are different than the conclu-

sions reached by the jury, the Trial Court, and the Ap-

pellate Court. In authoring this copy, Helford admittedly

created the inference of sexual climax and lesbianism by

using a quotation from a press release from “Breaking

Away” out, of context, and played upon the meaning of

those words, within which, as spoken by Douglass, no

sexual connotation was intended nor present. (T. 394, 932-

936, DX 28). Thus, rathe: than being a complimentary

commentary about the Respondent as the press release

was originally intended, the text accompanying the fea-

ture was instead admittedly intended to create the infer-

ence and innuendo of a sexual climax by the models in a

lesbian relationship. (T. 262, 264, 933)

In addition to the false text which placed the Respond-

ent in an offensive false light, Douglass’ name was posi-

tioned across the front cover of the Magazine proclaim-

ing Douglass’ appearance in Hustler. Her name and

credits achieved top billing in larger and bolder print

than any other feature. (T. 187-138; PX 21).

Further, Hustler bills itself as the most “irreverent and

iconoclastic magazine ever published.” (T. 239; PX 38).

Even Hustler’s Petition filed in this court recognizes

that “[t]he magazine is, by design, a controversial and

irreverent publication that has come to be disliked by

a large segment of the public.” Petition of Hustler

Magazine, p. 3. In addition, Larry Flint, the Publisher

of Hustler, has stated that the models who appear in

Hustler do so by choice and are well paid for their

appearance. (T. 131, 1838, PX 24). Robyn Douglass

never consented to, nor was compensated for the use. of

her name and likeness in Hustler Magazine. The circum-

stances surrounding the publication of Robyn Douglass’

name, potographs and accompanying text in the January

1981 issue along with the resulting involuntary associa-

tion thrust upon her was highly offensive and tainted her

image as a commercial actress. (T. 104, 110, 655). In

fact, it was so devastating that it caused her to become

“persona non grata” in the advertising community and

“killed” her commercial acting career. (T. 140, 264,

684). An executive producer of a major nationwide

advertising agency who had a high regard for her talent

and who had hired her in the past having full knowledge

of the Respondent’s appearances in Playboy Magazine

was no longer willing to do so. This reluctance was due to

the conservative nature of the advertising community

and risk of having the association with Hustler surface,

embarrassing the ad agency’s client. (T. 655, 657, 661-

662, 665).

B. Proceedings in the District Court

Douglass asserted in the United States District Court

for the Northern District of Illinois that the unauthor-

ized use of her name, photographs, and false text accom-

panying the photos in the December, 1980 and January,

1981 issues of Hustler violated her right to privacy.

More specifically, the Plaintiff claimed that the publica-

tion placed her in an offensive false light as well as

wrongfully appropriating her name and likeness for the

Magazine’s commercial benefit.

Hustler’s Petition misstates the character and nature

of Douglass’ claim before the District Court. The com-

plaint of the Responden: is not in any way associated

with the content of the photographs. Hustler stole these

photographs which had never been published before in

any medium. It advertised her appearance in its Maga-

zine, claiming that she was a “Hustler Celebrity,” in-

timating that she was appearing therein voluntarily, and

inter‘ ynally insinuating that the photographs depicted

the Respondent in a state of sexual climax with another

woman. It exploited her name prominently on *he cover,

thereby involuntarily associating her with the Magazine.

‘Because of these false statements and innuendo, know-

ingly or recklessly made by: Hustler, and because the

trial strategy of Hustler itself to equate the Respondent’s

appearance in Hustler to those in Playboy Magazine, Re-

spondent, to demonstrate the offensiveness of the false

light in which she was cast as well as the damages she

suffered, had to show the degrading nature of the publi-

cation. This was not done, as Hustler asserts, to estab-

lish liability. It was done as proof upon the issue of the

offensive nature of the false light and damages. Had

Hustler’s publication been truthful, accurate, and with

proper consent, Douglass could not complain.

C. Proceedings in the Seventh C ircuit

The Court of Appeals for the Seventh Circuit con-

sidered the Petitioner’s Appeal requesting reversal of the

judgment entered in the District Court in favor of the

Plaintiff and the Respondent’s Cross Appeal challenging

the propriety of the remittitur by the District Court of

the punitive damages assessed against Hustler. The

Court of Appeals reversed the judgment in favor of the

Respondent and remanded the case for a new trial based

primarily upon an erroneous jury instruction in which

the court advised the trier of fact that actual malice on

the part of Hustler in printing these falsehoods could

be proven by a preponderance of the evidence rather

than using the clear and convincing standard. Hustler

being dissatisfied with this result, filed its Petition for

Rehearing with Suggestion for Rehearing Jn Banc, urg-

ing the Seventh Circuit to conduct a de novo review of

the record to absolve Hustler of fault and liability. In

undertaking this task, the Seventh Circuit held that the

“jury’s award was not only within the bounds of reason,

but was so far as we are able to determine from the cold

record, a correct finding.” Petition of Hustler, p. 35a.

Nevertheless, Hustler presses forward, presenting the

same legal arguments already discredited by three dif-

ferent bodies in its Petition for a Writ of Certiorari.

ARGUMENT IN RESPONSE TO HUSTLER’S PETI-

TION FOR A WRIT OF CERTIORARI

I. The Respondent’s Cause Of Action For False Light

Invasion Of Privacy And Wrongful Appropriation Of

Her Name And Likeness Is Premised Upon The Falsity

Of The Publication And Not The Context Of The

Publication Itself

Hustler petitions this Court to review the decision of

the Seventh Circuit based upon its perception that the

Court premised-liability not on the falsity of the speech

but rather upon the vehicle within which the speech was

uttered. This argument is an irresponsible misrepre-

sentation of the substance of the Respondent’s claim as

well as the proofs adduced at trial. Hustler, in resur-

recting this discredited, meritless argument once again

hopes to focus this Court’s attention away from the over-

whelming evidence of the falsity of the publication and

the offensive false light in which Douglass was cast.

Hustler’s First Amendment argument regarding any

possible protection provided under these circumstances

must fail. “Freedom of the press under the First Amend-

ment does not include absolute license to destroy lives

or careers.” Curtis Publishing Co. v. Butts, 388 U.S.

130, 170 (1967) (Warren, C.J., concurring). The First

Amendment protections afforded the press and the right

of privacy of individuals are competing interests. Yet,

this Court has stated that the “constitutional guar-

antees of free speech and press can tolerate sanctions

against calculated falsehoods without significant impair-

ment to the essential functions of these guarantees.”

Time, Inc. c. Hill, 385 U.S. 374 (1967). This holding

was reiterated by this Court in Gertz v. Robert Welch,

Ine., 418 U.S. 823 (1974). “There is no constitutional

value in false statements of fact. Neither the inten-

tional lie nor the careless error materially advances soci-

ety’s interest in uninhibited, robust, and wide-open de-

bate on public issues.” Jd. at 340.

»——

Hustler’s argument, stripped of its facade, is that the

publisher must enjoy an unconditional immunity from

liability for invasion of privacy where a person has

appeared in the public domain. Yet, Hustler fails to

give cognizance to the facts that the pictures it pub-

lished were wrongfully obtained without valid releases,

had never previously been published in any forum, and

contained false statements in the copy as well as the

advertisement of her appearance therein as a “Hustler

Celebrity Exclusive.”

The evidence presented in support of Respondent’s

claim for false light invasion of privacy end wrongful

appropriation of her name and likeness clearly demon-

strates that Hustler may be held liable without fear of

infringing the Magazine’s First Amendment protection.

The December, 1980 issue of Hustler advertised the up-

coming appearance of Robyn Douglass using the words

“Hustler Celebrity Exclusive.” (T. 103, PX 19). In

the January, 1981 issue, her name and credits were

again published on the cover of the Magazine in larger

and bolder print, receiving top billing over every other

feature. (PX 21, T. 137-138). Larry Flynt, Executive

Publisher of Hustler, admits that the cover of the Maga-

zine has only one purpose; to sell magazines. (T. 136,

PX 1, PX 25, p. 4). He also represents to the world

that the models appearing therein do so by choice and

are well paid for their appearances. (T. 105, 110, 125,

149, 449). Douglass neither appeared by choice nor was

she compensated. Gregory was hired by Hustler to up-

grade the image of the Magazine. One way of accom-

plishing this was with celebrity photos. (T. 546, 1009).

Shortly thereafter, a three page photo spread of the Re-

spondent appeared in the Magazine. (PX 21, 22).

Other evidence adduced by trial regarding false state-

ments and wrongful conduct on the part of Hustler ex-

ists. The copy accompanying the photos states that

Douglass “was trained to use her body as a tool of her

en ee re ae

trade” and that “these photos show how well she’s learned

to use that tool.” (T. 262-263, PX 22). The copy includes

a quotation attributed to Respondent extracted from an

unrelated press release which referred to a dramatic

climactic moment from her character’s role in “Breaking

Away”. (T. 935-936). The original quotation had no sex-

ual reference or intendment whatsoever, as admitted by

Bruce Helford, author of the copy. (T. 936). The copy

further states that “[f]rom the leoks of Robyn (who’s

blonde in the photos of her and a female friend), she’s

never had any difficulty finding climactic moments.”

(PX 22). Helford admitted that it was his intention to

create the impression that the models were in a state of

achieving sexual climax. (T. 933). Helford knew that the

copy would create the impression that the Respondent was

involved in a lesbian encounter. (1. 930). He did this

despite the fact that the “Ripped-Off’’ theme as conceived

by Gregory was contrary to the inference created. (T.

66, 506). None of the nude photos published by Hustler

had ever appeared in print before in any medium. The

one picture from the “Ripped-Off” photo session printed

in Playboy previously contained no inference of homo-

sexuality or of sexual activity nor did the caption ac-

companying the phetos suggest any such inference. (T.

66, 384, 506). It is uncontroverted fact that the photo

session was not a lesbian sexual encounter and that Robyn

Douglass is not a lesbian. (T. 66, 384, 422-423, 506). It

is also uncontroverted that the Respondent never gave

permission to anyone other than Playboy to use these

photos. (T. 110, 192).

The evidence produced at trial is substantial and a re-

view of this record clearly undermines the Petitioner’s

arguments herein that the Respondent complains merely

of the messenger and not the message. Hustler’s authori-

ties cited in its Petition for a Writ of Certiorari on this

point, although numerous in numbers, have no application

to the case at bar. Each case cited by the Petitioner is

easily distinguishable due to the fact that the publications

complained of were true and accurate and contained no

falsity.

Petitioner cites Falwell v. Penthouse International, Ltd.,

521 F. Supp. 1204 (W.D. Va. 1981), in support of its

contention that a public figure is unable to complain of a

publication in a magazine which he finds personally ob-

jectionable. The Respondent does not challenge the Peti-

tioner’s interpretation of Falwell, but rather challenges

the applicability of that decision to the instant matter.

In Falwell, the Plaintiff “conceded that the account as

published (was) accurate, truthful, and totally consistent

with his statement .. .” Jd. at 1209. It should also be

noted that the Falwell court dismissed the false light

count for the simple reason that the statutory law of

Virginia preempted the common law right to privacy and

that no cause of action for false light existed under the

Virginia statutes.

Ann-Margret v. High Society Magazine, Inc., 498 F.

Supp. 401 (S.D.N.Y. 1980), produces a similar result.

In that case, the Defendant published a still and accurate

reproduction from her appearance in a motion picture.

Again, the publication complained of involved a faithful

reproduction of a public performance.

The remaining cases cited for this proposition by

Hustler are factually similar and the Petitioner, in its

petition, sets forth the determinative passage distinguish-

ing those cases from the case at bar. In Goelet v. Con-

fidential, Inc., 5 App. Div. 2d 226, 171 N.Y.S.2d 2238

(N.Y. App. 1958), the court dismissed Plaintiff’s com-

plaint holding that the publication “obviously is not fic-

tionalized nor is it a treatment of public figures distinct

from the dissemination of news or information.” 5 App.

Div. 2d at 230. Likewise, in Faucheux v. Magazine Man-

agement, 5 Med. L. Rptr. 1697, 1700 (E.D.La. 1979),

the court granted summary judgment for the Defendant

finding that a “factually accurate public disclosure is not

tortious when connected with a newsworthy event even

though offensive to ordinary sensibilities.” Each and every

other citation provided by Hustler for this proposition is

distingushed by the fact that, unlike the case at bar, the

publications complained of therein were factually ac-

curate, were printed with a valid release, or were not

highly offensive to reasonable sensibilities."

The Seventh Circuit opinion in no way represents a

fundamental departure from the protection accorded

media defendants under the First Amendment. The

Court determined that the jury’s finding that the publica-

tion insinuated Douglass as a lesbian through the false

copy was not only reasonable, but also correct. Further-

more, Hustler proclaimed to all the world in its Decem-

ber, 1980 issue that Douglass would appear as a “Hus-

tler Celebrity.” The Magazine splashed her name across

the cover of that January, 1981 issue in bigger and

bolder lettering than any other feature. The cover is

admittedly designed to sell magazines. The publisher

himself proclaims to the world that the models appearing

therein do so voluntarily, and it actively sought out

celebrity photos to upgrade the Magazine. It is clear

1 Namath v. Sports Illustrates, 48 App. Div. 2d 487, 363 N.Y.S.2d

276, 279 (N.Y. App. 1976) (“. .. nothing degiading, derogatory, or

untruthful about the copy.”); Sherwood v. McGowan, 3 Misc. 2d

234, 152 N.Y.S. 2d 658 (Sup. Ct. 1956) (No claim of falsification as

case concerned whether Plaintiff's consent had been exceeded) ;

Vitale v. National Lampoon, Inc., 449 F.Supp. 442 (E.D. Pa. 1978)

(The parody complained of was of Playboy Magazine and not the

Plaintiff, no comment was made about Plaintiff nor was her name

used.); Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341

(D.C. Tex. 1985). (Valid consents given for accurate use of photo-

graphs of children not identified by name in publication.) ; Benally

v. Hundred Arrows Press, Inc., 614 F.Supp. 969 (D.C. N.M. 1985)

(Defendant did not seek to benefit from use of Plaintiff’s name or

likeness and use of photograph of Plaintiff and infant son on indian

reservation home was not highly offensive to attach liability upon

the Defendant.)

from these facts that the Magazine appropriated the

Plaintiff’s name and likeness for its commercial benefit.

Hustler also falsely and intentionally placed the Respond-

ent in an offensive false light. It purposely associated

the name of Robyn Douglass with that of Hustler Maga-

zine. As the Seventh Circuit noted, it was as if Hustler

had proclaimed that “Robyn Douglass is proud to pose

nude for Hustler Magazine.” Petition of Hustler, p. 10a.

However, it is undisputed fact that Douglass never gave

permission to either Gregory or Hustler, nor did she

consent to the offensive false sexual innuendo accom-

panying the photographs.

One element of the tort of false light invasion of pri-

vacy is that the false publication cast the individual in

a light highly offensive to a person of reasonable sensi-

tivities. Leopold v. Levin, 45 Ill.2d 484, N.E.2d 250

(1970) ; Restatement (2d) of Torts, § 652E (1976). In

the case at bar, in order to prove that the wrongful

appropriation of Douglass’ name and likeness, her wrong-

ful association with the Magazine as a “Hustler Cele-

brity,” and the statements by the Publisher that the mod-

els appearing in Hustler did so by choice were highly

offensive, the context and setting of the false publica-

tion became an issue. However, this was not the ulti-

mate issue upon which the liability of Hustler is premised.

This only becomes an issue upon finding that Hustler

published false information about the Plaintiff with

knowledge or reckless disregard for its falsity.

Il. The Seventh Circuit Applied The Proper Standard Of

Actual Malice. Furthermore, The Ultimate Disposition

Of The Appellate Court In Remanding This Cause For

A New Trial Has Rendered The Arguments Presented

In Hustler’s Petition Premature

Although Hustler has been successful in securing a

reversal of the judgment entered against it, the Maga-

zine is dissatisfied with the views of the Appellate Court.

As ridiculous as it seems, one complaint of Hustler is

that although the Seventh Circuit conducted a de novo

review, it did so too late, and only upon Hustler’s peti-

tion for rehearing. However, the Petitioner implores this

Court to redo all that has been done before, without any

sound, reasonable, or practical reason for doing so. If

this Honorable Court is so inclined to sit as trier of

fact at this stage of the proceedings, Douglass invites

it to conduct its own de novo review of the evidence.

Although a needless exercise, given the fact that a new

trial is ordered, an unbiased review of the record clearly

demonstrates the validity of the Respondent’s claim as

well as the correctness of the jury’s determination of

the publication of the false material by Hustler with

actual knowledge or reckless disregard as to its falsity.

The Seventh Circuit followed this Court’s holding re-

garding the proper standard for actual malice enunciated

in New York Times Co. v. Sullivan, 376 U.S. 254

(1964). Actual malice must be proved by clear and con-

vincing evidence and is defined as a publication made

with knowledge of the falsity or with reckless disregard

for the truth of the matter asserted. Jd. The Magazine’s

argument that the Seventh Circuit’s holding is “as

watered down a holding of proof of actual malice by clear

and convincing evidence as has been suggested by ony

court” is merely another hollow attempt by Hustler to

ignore the wealth of evidence of substantial wrongdoing

presented at trial; wrongdoing by not only Gregory,

acting as agent for the Corporation, but by others in

the inner sanctum of the Magazine’s hierarchy.

Hustler argues that the Respondent never proved any-

one in charge of the Magazine had any serious doubts

as to the truthfulness of the publication. However, the

association of Douglass’ name and likeness with the Mag-

azine was done without any release or authorization from

Douglass or anyone else possessing any right or interest

in the photos. The publication of these photos was done

intentionally to e.hance the image of Hustler. The pub-

lication had been committed to four months prior to Hus-

tler obtaining any releases. When asked to produce re-

leases at trial, Hustier presented two photocopies; one

copy an obviously forged release, and the other copy so

illegible that an expert could not even conduct an exam-

ination of the handwriting. However, the Respondent’s

unrebutted testimony identified both documents as for-

geries. Finally, the testimony of Gregory and the offi-

cials of the Magazine as to who is responsible for the

forgeries is in hopeless conflict. While Hustler attempts

to shift the blame elsewhere, Gregory, when shown re-

leases produced by Hustler, could not identify them as

the ones he allegedly provided.

Gregory, as photo editor of this national magazine, pre-

sented these photos to Hustler. The photos were first

viewed and caught the interest of Hustler executives

while Gregory was being interviewed for the job. One

objective of the company in hiring Gregory was to up-

grade the image of the Magazine. The use of celebrity

photos was thought to enhance the image of Hustler.

These photos were coveted by Hustler and actively sought

by the Magazine. Gregory acted as the agent and pur-

suant to the instructions of his principal in providing

these pictures in order to upgrade the quality of the

Magazine. His delivery of these photos was within the

scope of his agency and therefore, any knowledge by

Gregory of forged releases is knowledge imputed to the

principal. This is a fundamental tenet of agency law.

Hustler predictably attempts to distance itself from

the very acts of Gregory for which he was employed. It

argues that in this isolated transaction, Gregory acted

as an independent contractor for which Hustler can not

be held liable. Hustler’s only contention in support of

this is that Gregory was paid $2,400 by manual check

for these photos. This was merely to facilitate payment

and is a meaningless fact. (T. 160). He sold these pho-

tos at the time he was phote edi‘or and in furtherance

of his assigned task to upgred« che image of Hustler.

Hustler contends it is not at fault because magazine

policy requires releases to accompany every photo used.

It argues that, if in fact, the forgeries are attributed to

Gregory, he acted in direct opposition to the instructions

of the principal so that the principal cannot be held liable.

This argument is unsupported by the record. The photos

were not accompanied by releases when Hustler pur-

chased them, and although the particular edition was

being put together as early as June, 1980, releases were

not produced until September of that year. Further-

more, although another mode! was depicted in the photo-

graphs, Hustler never received her rele®ses nor were they

concerned with obtaining them. In fact, we Magazine did

not even know the name of that model. This evidence

alone indicates the recklessness of the corporation inde-

pendent of any acts of Augustin Gregory.

The record is replete with other acts engaged in by

agents of Hustler separate and independent from

Augustin Gregory, such that the Petitioner can be held

liable for invading the Respondent’s right to privacy. The

other intentional acts and recklessness of Hustler include

the failure to investigate the authenticity of the releases

after having waited a lengthy period of time for their

production, although such investigation could have been

easily accomplished; the failure to contact Douglass to

authenticate the releases as directed by Gregory when he

allegedly delivered releases in September, 1980; the publi-

cation of copy using a press release out of context and

imputing lesbianism to the Plaintiff; and the failure to

act after having been informed that the releases were

forged and prior to distribution of the Magazine to the

public. These facts demonstrate that the constitutional

threshold of actual malice was met by clear and con-

vincing evidence.

Hustler’s Petition must be scrutinized with great cau-

tion. No substantial question of law or fact are presented

upon which relief could be granted at this stage of the

proceedings. Hustler merely searches for another tri-

bunal to resurrect the same legal and factual arguments

already discredited. To grant this petition will only fur-

ther delay these proceedings needlessly in light of the

Seventh Circuit having reversed and remanded this case

for a new trial.

CONCLUSION

For the foregoing reasons, the Petition for Hustler

Magazine, Inc. for a writ of certiorari should be denied.

Respectfully submitted,