Robert Hofler, senior editor in charge of the article, testified that he wrote the subtitle "But She Blew the Contest with Her Talent," that he approved the art work, including the drawing of a female with a Wyoming banner, and that he chose the "blow-up" quote. Hofler admitted that he did not know of a Miss America contest in which a contestant appeared partially naked. Moreover, Hofler agreed that the Miss America pageant is proper, but indicated that because of the propriety, the article was obviously humor and obviously fiction. When he first reviewed the article, Hofler said he had qualms about it because the subject was the Miss America pageant and because that subject had been overdone satirically. Hofler describes the article as a story about a contestant in the Miss America pageant. Hofler sent the article to an attorney in the legal department for review. After reading it, the attorney inquired as to whether the article was fiction.
Robert Guccione, publisher of Penthouse, testified that the article "is about a contestant in the Miss America contest." Guccione acknowledged that the article contained many incidents of reality-the contest itself, the titles of the contestants (Miss Wyoming, etc.), Laramie, Wyoming, the boardwalk, the judges and the audience. Despite the incidents of reality, Guccione testified that he viewed the article as pure fantasy. However, Guccione did not read the article prior to publication.
James Goode, editorial director, described the article as a humorous piece, a piece of short fiction, about a contestant in the Miss America pageant. Goode admits that there is a reality in such a contest since there is a boardwalk in Atlantic City, there are judges at the contest, and there are other contestants. Moreover, he knew that the writing was about a Miss America pageant, he knew it was about a pageant held in Atlantic City, and he knew that the real Miss America pageant was held there. However, he took the story to be a total invention from the moment he began reading it, and he found nothing in it to indicate that it was not a total piece of fiction.
Based upon this testimony, plaintiff contends that there is sufficient evidence of defendant's knowledge of the falsity of the article to withstand defendant's motion and to warrant judgment for plaintiff on the question of actual malice.
Defendant counters that the testimony of its employees and publisher does not establish that defendant was aware that it was publishing false facts about plaintiff, but rather, simply that defendant was publishing a work of satirical fiction not purporting to relate real events. Defendant argues that, if plaintiff's logic were to be accepted, "every person whoever publishes a piece of fiction acts with actual malice," imposing a rule of strict liability for writers of fiction. However, such a rule of law must, in defendant's view, be rejected. Defendant relies on Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 160 Cal.Rptr. 352, 603 P.2d 454 (Cal.1979), in which Chief Justice Bird of the California Supreme Court observed in concurrence:
They (truthful and fictional accounts) have equal constitutional status and each is as likely to fulfill the objectives underlying the constitutional guarantees of free expression. Moreover, in defamation cases, the concern is with defamatory lies masquerading as truth. In contrast, the author who denotes his work as fiction proclaims his literary license and indifference to "the facts.' There is no pretense. All fiction, by definition, eschews an obligation to be faithful to historical truth. Every fiction writer knows that his creation is in some sense false.