Appeal from a judgment of the District Court for the Southern District of New York (Robert W. Sweet, Judge) awarding plaintiff damages in a libel action. Reversed.
Before: NEWMAN, CARDAMONE, and PIERCE, Circuit Judges.
JON O. NEWMAN, Circuit Judge :
Publishers of pornography are, not surprisingly, often criticized and scorned and, on occasion, may even be libeled. This libel action brought by Robert Guccione, the publisher of Penthouse magazine, is noteworthy because the alleged libel was authored not by a righteous crusader against smut but by Larry Flynt, the publisher of Hustler magazine. An article printed in Hustler in 1983 stated that Guccione "is married and also have a live-in girlfriend, Kathy Keeton." In what the District Court for the Southern District of New York (Robert J. Sweet, Judge) characterized as a "grudge match," Guccione sued for libel. The undisputed facts disclosed at the trial revealed that Guccione had been notoriously living with Miss Keeton while still married to Muriel Guccione for thirteen of the seventeen years prior to the article's publication, though he and Mrs. Guccione were divorced four years before the article appeared. Guccione emerged from the fray with a judgment in his favor of $1 in nominal damages and $1.6 million in punitive damages.
We must be careful in cases such as this not to accord either the pornographer plaintiff or the pornographer defendant less protection than would be accorded libel litigants who publish more traditional works of literature or journalism. Bearing that point firmly in mind, we conclude, for reasons that follow, that Guccione's claim fails as a matter of law, both because the statement at issue was substantially true and because Guccione was "libel-proof" with respect to an accusation of adultery. We therefore reverse.
In the "Bits & Pieces" section of its November 1983 issue, Hustler printed a half-page article by Flynt that commented on Guccione's practice of being photographed, fully clothed, with naked Penthouse models. The article, entitled "What a Ham!" and labeled "Editorial Opinion," was accompanied by a photo from the September 1983 issue of Penthouse, depicting a clothed Guccione with his arm around an unclothed model sitting on his knee. The article included the following sentence: "Considering he is married and also has a live-in girlfriend, Kathy Keeton . . . we wonder if he would let either of them pose nude with a man" (ellipsis in original). Guccione contends primarily that the quoted language falsely accuses him of committing adultery in 1983, when the article appeared. He also suggests that it falsely implies that he was then living with his wife and girlfriend simultaneously. It is undisputed that Robert and Muriel Guccione married in 1956, separated in 1964, and divorced in 1979; Guccione has not remarried. It is also undisputed that Guccione has cohabited with Kathy Keeton since 1966.
Guccione, who is a public figure, sued Hustler Magazine, Inc. ("HMI") and Flynt Distributing Company, Inc. ("FDC"), alleging defamation, invasion of privacy, and copyright infringement.*fn1 The privacy and copyright claims were dismissed and are not pursued on appeal. The defendants unsuccessfully sought summary judgment, alleging the absence of actual malice and the substantial truth of the publication.
At a boisterous trial that gave new meaning to the term "adversary proceeding," Guccione contended that the article was libelous per se because adultery is a crime in New York, N.Y. Penal Law § 255.17 (McKinney 1980), and that he was entitled to nominal damages even if he had not demonstrated injury to reputation. He further claimed that the defendants printed the libel with actual malice, that is, knowledge of its falsity or reckless disregard for whether it was true or not. In support of this claim, Guccione presented evidence that he had testified about his 1979 divorce at the televised Ohio trial of a previous libel suit against HMI, that Flynt attended much of the trial, and that in connection with that trial Muriel Guccione discussed the divorce during the course of a deposition attended by HMI's attorneys. Guccione also elicited testimony that Flynt and his business associates are self-professed "Guccione watcher" with excessive interest in the details of the Penthouse publisher's private life. Finally, Guccione offered excerpts from other issues of Hustler to show that Flynt bore ill will toward Guccione. Guccione sought compensatory and punitive damages and, at the damages phase of the trial, offered into evidence the entire November 1983 issue of Hustler.
Throughout both the liability and damages phases of the bifurcated trial, Guccione's attorney, Norman Roy Grutman, whose melodramatic appeals to jurors' passions and prejudices have previously been criticized by this Court, see Lerman v. Flynt Distributing Co., 745 F.2d 123, 141 (2d Cir. 1984), cert. denied, 471 U.S. 1054, 105 S. Ct. 2114, 85 L. Ed. 2d 479 (1985), demonstrated the inadequacy of our prior cautions. Grutman described Flynt as "the Son of Sam among publishers," a "Philistine Goliath" and "Quasimodo"; he called Flynt's and Hustler's attacks on Guccione "torture" and "death by a thousand cuts"; he said those connected with the alleged libel were trying "to poke Mr. Guccione in the eye with a sharp stick, just as they have been doing for 10 years." At the close of his summation in the damages phase of trial, Grutman urged the jurors, "[i]n the name of the Almighty," to award Guccione large sums in compensatory and punitive damages.
The defense case was presented with equal vigor, though was less flamboyance. In addition to maintaining throughout that Guccione's adultery for thirteen years--from 1966, when he began living with Kathy Keeton, until he was divorced in 1979--made the printed statement substantially true, HMI and FDC argued that the alleged libel was published without actual malice and that in any event Guccione could not recover because his reputation had not been damaged. To support the latter argument, the defendants elicited from Guccione testimony that he suffered no mental anguish since his parents, children, social friends, and business associates knew he had been living with Kathy Keeton while still married. In addition, the defendants introduced into evidence numerous issues of Penthouse and excerpts from other magazines published by Guccione containing articles describing or advocating extramarital sexual relations. The purpose of this evidence was presumably to demonstrate that Guccione views adultery as acceptable conduct. Indeed, he testified that in his opinion he was not committing adultery from 1966 to 1979 and that he sees no social stigma attached to adultery.
The defendants also attempted to show that Guccione's reputation for matters relating to his marriage and adultery is so bad that he "libel-proof" with respect to the Hustler article. The defendants attempted to offer as evidence, in addition to the articles and excerpts mentioned above, several articles from major publications in which the fact of Guccione's marriage and his contemporaneous relationship with Kathy Keeton are described. The District Court refused to allow into evidence articles probative of Guccione's reputation prior to 1978 during either the liability or the damages phase of the trial.*fn2
At the end of the trial's liability phase, the jury concluded that the statement "Considering he is married and also has a live-in girlfriend, Kathy Keeton" constituted libel per se as defined by the District Court, was false, and was published and distributed with actual malice. At the damages phase, the jury found HMI and FDC liable to Guccione for one dollar nominal damages for injury to reputation, the minimum allowed by the Court, but gave no award for mental or emotional distress. In addition, the jury awarded Guccione punitive damages of $900,000 from HMI and $700,000 from FDC. The defendants then moved for ...