Jackie Collins Lerman v. Flynt Distributing Co., Inc.
745 F.2d 123 (1984)
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Rule of Law:
A distributor of a publication cannot be held liable under a state privacy statute for publishing a factual error about a limited-purpose public figure unless the figure proves by clear and convincing evidence that the distributor acted with 'actual malice'—that is, with knowledge of the falsity or with reckless disregard for the truth.
Facts:
- Jackie Collins Lerman is an internationally renowned author whose novels often feature controversial sexual themes.
- In its May 1980 issue, 'Adelina' magazine published nude photographs of an actress from the film 'The World is Full of Married Men,' for which Lerman wrote the book and screenplay.
- The magazine's cover and an accompanying article falsely identified the actress in the photos as Jackie Collins Lerman, stating she appeared 'In the Nude'.
- Lerman did not appear in the film in any capacity and has never appeared nude in public.
- Flynt Distributing Company (FDC) was the national distributor for the magazine.
- The cover of the May 1980 issue, featuring Lerman's name, was reprinted in smaller form within subscription solicitations in the June 1980 and January 1981 issues of 'Adelina'.
Procedural Posture:
- Jackie Collins Lerman sued Chuckleberry Publishing, Inc. (publisher) and Publishers Distributing Company (original distributor) in the U.S. District Court for the Southern District of New York.
- The district court issued a preliminary injunction restraining distribution.
- Flynt Distributing Company (FDC) purchased the distribution contract and was joined as a party defendant.
- The district court granted summary judgment in favor of Lerman against FDC on her New York statutory privacy and right to publicity claims, and dismissed her libel claim.
- After Lerman settled with the other defendants, a jury trial was held against FDC solely on the issue of damages.
- The jury returned a verdict for Lerman, awarding $7 million in compensatory and $33 million in punitive damages.
- The trial court reduced the punitive damages award to $3 million, entering a final judgment of $10 million.
- FDC, as appellant, appealed the judgment to the U.S. Court of Appeals for the Second Circuit; Lerman is the appellee.
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Issue:
Does holding a magazine distributor liable under New York's statutory right to privacy for the false and unauthorized use of a limited-purpose public figure's name violate the First Amendment, where there is no proof the distributor acted with actual malice?
Opinions:
Majority - Cardamone, J.
Yes, holding the distributor liable under these circumstances violates the First Amendment. Because Jackie Collins Lerman is a limited-purpose public figure who voluntarily injected herself into public controversies surrounding sexual mores, she must prove the defendant acted with 'actual malice' to recover damages for a privacy tort based on a factual error. The New York privacy statute must yield to these constitutional protections. The court found no evidence, let alone clear and convincing evidence, that Flynt Distributing Company knew the identification was false or entertained serious doubts as to its truth. Mere failure to investigate is insufficient to establish the requisite scienter for a distributor. Furthermore, Lerman's right to publicity claim fails because she has no property interest in her nude appearance, making her claim one of false light, not commercial appropriation.
Concurring-in-part-and-dissenting-in-part - Bonsal, J.
Yes, the First Amendment requires a limited-purpose public figure like Lerman to prove actual malice to hold a distributor liable. However, the majority is wrong to dismiss the case as a matter of law. The existence or absence of actual malice pertains to a defendant's state of mind, which is a factual question that is not well-suited for summary disposition by an appellate court. Therefore, the case should be remanded to the trial court to give the plaintiff an opportunity for further discovery and a trial on the issue of actual malice.
Analysis:
This decision solidifies the application of the First Amendment's 'actual malice' standard, established in defamation law by New York Times v. Sullivan, to state-law privacy torts, particularly 'false light' claims brought under New York's § 51. It clarifies that distributors, not just publishers, are entitled to this significant constitutional protection, thereby raising the burden of proof for plaintiffs. The case also provides a clear framework for determining 'limited-purpose public figure' status based on a person's voluntary participation in a public controversy, making it more difficult for individuals who have sought the public spotlight to sue media defendants for errors related to that controversy.
