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October 30, 1981


The opinion of the court was delivered by: GERRY

Plaintiff instituted this libel action complaining of the publication by defendant in the August 1979 issue of Penthouse Magazine of an article entitled "Miss Wyoming Saves the World ...." Plaintiff alleges that defendant falsely and with actual malice published certain false and libelous words about plaintiff's contestant, Miss Wyoming, and thus about plaintiff. Plaintiff also alleges that certain words directly of and concerning it are likewise defamatory. Plaintiff, in its complaint, identifies the aspects and specific statements in the article which it claims are "false, libelous per se or otherwise libelous."

Plaintiff is a not-for-profit corporation incorporated under the laws of New Jersey, with its principal place of business in New Jersey.

 Defendant is a New York corporation with its principal place of business in a state other than in New Jersey.

 Jurisdiction over this action is based upon 28 U.S.C. § 1332, diversity of citizenship.

 Last December, the court decided a motion by defendant for summary judgment which was based on the ground that the article in question was a fictional work and therefore protected under the First Amendment. The court determined that the mere fact that a work could be characterized as fictional did not provide its publisher with a complete defense against an action for libel.

 Defendant now moves again for summary judgment on two grounds:

(1) Plaintiff is a public figure and cannot establish actual malice by clear and convincing evidence; and
(2) The fictional story in question is a form of parody, satire, humor or opinion protected under the First Amendment.

 In support of its motion, defendant offers copies of the affidavits of Robert Hofler, senior editor at Penthouse who worked on the story, and of Philip Cioffari, author of the story, which were previously submitted in support of defendant's prior motion for summary judgment. Mr. Hofler indicates that prior to the article in question, Penthouse had published four fictional works by Philip Cioffari. Because of this prior experience and because of Cioffari's reputation as a professor of English and creative writing, Mr. Hofler did not question the veracity of Cioffari's representation that the work was fictional. Moreover, Hofler was specifically assured by the author that the work was fictional.

 The author, Philip Cioffari, states that he has been a free-lance writer for 15 years. In addition, he is employed as a full professor of English, teaching both creative writing and contemporary literature. The author states that he intended the story in question to be a work of fiction with no resemblance whatever to any real person or event. Nor did he intend the story to be a true statement of facts about an actual, real Miss America pageant. Cioffari verifies that he informed Hofler that his story was a work of pure fiction.

 Plaintiff has filed a cross-motion for summary judgment. Plaintiff maintains that it has proved actual malice by clear and convincing evidence and thus is entitled to summary judgment on the question of actual malice. Plaintiff argues that admissions of defendant's publisher and employees establish that defendant knew that the events depicted in the article did not portray true facts about the Miss America pageant. Plaintiff also takes the position that the question of actual malice was already presented to a jury and decided adversely to defendant in a prior action in the United States District Court for the District of Wyoming.

 Turning first to defendant's second ground for summary judgment, defendant compares its story to satirization of the Miss America pageant in Mad Magazine, in the National Lampoon or on the Johnny Carson Show. Defendant argues that such satire, whether in the form of fiction or humor, amounts to constitutionally protected opinion and cannot be the subject of a libel action. Defendant does not explain what opinion of the Miss America pageant it seeks to present by way of its story. However, plaintiff has submitted excerpts of the transcript of the Wyoming trial. At that trial, Mr. James Goode, of defendant's staff, testified that the story had no social or political value, that it was pure entertainment. Moreover, the affidavits of Mr. Hofler and Mr. Cioffari give no indication that there was any intent to parody, satirize or present an opinion of the Miss America pageant. Whether, despite these facts, the story would have been perceived as a parody, satire or opinion is not clear from a mere examination of its contents. Moreover, the testimony of Mr. Goode and the absence of any mention of an intent to parody, satirize or opine in the affidavits of the author and editor casts substantial doubt on the question of whether the story contains any "constitutionally protected opinions." The basic premise upon which defendant's second argument is founded depends upon a finding that the work is opinion, satire or parody. However, such a finding cannot be made from the facts before the court.

 Defendant's legal conclusion that the constitutional considerations which guarantee freedom of the press mandate that the law should be hospitable to the humor of parody are also open to question since the cases which defendant relies upon in support of its conclusion are cases from the area of copyright or trademark infringement. Certainly, different, countervailing societal interests must be balanced in such a case. A copyright or a trademark represents a property right which is balanced against the societal interest in the unimpeded flow of ideas. In a defamation action, an important personal interest in reputation is sought to be protected. That the property right in a copyright or a trademark is not equivalent to the personal interest in reputation is illustrated by Girl Scouts of the USA v. Personality Posters Mfg. Co., 304 F. Supp. 1228, 1235 (S.D.N.Y.1969), relied on by defendant. In that case, the plaintiff brought an action for trademark infringement seeking a preliminary injunction against the issuance of a poster by defendant. The poster depicted a pregnant young woman, wearing a girl scout uniform with the motto "Be Prepared" on the bottom of the poster. The court held that as between an injunction and the public and societal interest in the unimpeded flow of ideas, the public interest outweighed the property right. However, the court indicated that plaintiff's remedy, to the extent that it suffered injury as a result of the publication, would be in damages for defamation, and not in injunctive relief for infringement. In the instant case, plaintiff is already seeking damages for defamation. The societal interest in the free flow of ideas has already been served since defendant has published its story. However, such an interest cannot, as the court recognized in Girl Scouts, be asserted to defeat a right to damages for defamation.

 To accept defendant's position would amount to the granting of absolute protection to works of parody and satire. Such a position was rejected by the court in its previous ...

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