Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 81 C 6939--Nicholas J. Bua, Judge.
Eschbach and Posner, Circuit Judges, and Timbers, Senior Circuit Judge.*fn*
Robyn Douglass, the actress and model, obtained $600,000 in damages in this diversity suit against the corporation that publishes Hustler magazine, for invasion of her right of privacy. Hustler (as we shall call the magazine and its publisher interchangeably) has appealed, raising questions of tort law, freedom of the press, and trial procedure; Douglass has cross-appealed, complaining about the judge's action in reducing the punitive damages awarded by the jury.
Robyn Douglass moved to Chicago in 1974 and began a career as an actress and model. That year she posed nude together with another woman for the freelance photographer Augustin Gregory, a codefendant with Hustler in the district court. The photographs were intended for a forthcoming feature in Playboy magazine, the "Ripped-Off" pictorial. Gregory testified that he required all his photographic models to sign releases allowing him to do with the photographs whatever he wanted. Robyn Douglass testified (and the jury was entitled to believe) that all she signed was a release authorizing Playboy to publish or otherwise use the photographs "for any lawful purpose whatsoever, without restrictions." The release does not refer to sale as such; but in granting rights not only to Playboy but to its "assigns and licensees," Douglass in effect gave Playboy carte blanche to dispose of the photos in any lawful way it wanted. Some of the photographs were published in Playboy in March 1975 as planned. Gregory had in 1974 also taken nude photographs of Douglass for a "Water and Sex" pictorial, also intended for Playboy ; and there is a similar conflict over the release.
Douglass's career throve in the following years. She appeared eight times nude in Playboy but also made television commercials for Chicago advertising agencies and appeared in television dramas and in movies -- notably "Breaking Away," where she had a starring role. Meanwhile in 1980 Gregory had become the photography editor of Hustler. This move was not unconnected with his earlier photographing of Douglass. The magazine wanted to publish nude photos of celebrities and in negotiations over becoming Hustler's photography editor Gregory had shown management some of his photographs of Douglass. After he was hired, management asked Gregory for releases authorizing publication of those photographs. He testified that he couldn't find the releases at first but that eventually he submitted to Hustler two releases signed by Douglas, one for the photo session for the "Ripped-Off" pictorial, the other for the "Water and Sex" pictorial. At trial Hustler was able to produce only photostats of the releases allegedly signed by Douglass. The parties stipulated that, if called as a witness, a handwriting expert would testify that Douglass's signature had been forged on one of the releases and that the photostat of the other was too poor to allow the authenticity of the signature on it to be determined.
Douglass heard that there was to be a photo feature on her in the January 1981 issue of Hustler (an acquaintance had seen an announcement of it in a previous issue). She complained to the magazine that it had no authority to publish any photos of her. It responded with photostatic copies of the alleged releases, which within two or three days she denounced to Hustler as forgeries. The issue containing the feature had already been printed and distributed to retailers; and though it had not yet appeared on newsstands or been mailed to subscribers, Hustler made no effort to recall the issue, and it was widely sold. The feature, entitled "Robyn Douglass Nude," contained nude photographs from the two photo sessions for Playboy and stills (not nude) from two of her movies. The magazine paid Gregory a fee, over and above his regular salary, for the photographs he had supplied.
This suit charges that Gregory and Hustler invaded Douglass's right to privacy under the common law of Illinois by publishing "Robyn Douglass Nude." The feature, she charged, invaded her right of privacy in two ways: it cast her in a "false light," and it appropriated valuable commercial rights that belong to her. At trial she presented evidence that the publication of the feature had caused her emotional distress, and had killed her career of making commercials in Chicago because advertisers thought she had voluntarily appeared in what they considered an extremely vulgar magazine. An economist testified that the present value of her lost earnings was $716,565 at the time of trial (1983).
The judge gave the jury a verdict form with a blank beside each defendant's name for the amount of compensatory damages if the jury found either defendant liable, and a separate blank beside each name for punitive damages. The jury found both defendants liable and awarded the plaintiff $500,000 in compensatory damages against each defendant and $1,500,000 in punitive damages against Hustler. The judge remitted all but $100,000 of the punitive damages and Douglass accepted the remittitur. The award of compensatory damages against Gregory was not executed because on the eve of trial he had made an agreement with Douglass that if he testified truthfully, and consistently with his deposition, she would not execute any judgment against him. Hence the real judgment was only $600,000. Gregory has not filed an appearance in this court.
Hustler argues that the facts, even when viewed favorably to the plaintiff, do not make out a cause of action under the Illinois common law of privacy, so that the judgment should be reversed with directions to dismiss the complaint; or that if they do, still the complaint must be dismissed because the plaintiff failed to prove "actual malice" by clear and convincing evidence, as required by the Constitution. Alternatively it argues that a new trial should be ordered because of errors in the instructions to the jury, and other trial errors.
First of all, Hustler denies that Illinois even recognizes the "false light" tort. Illinois' substantive law governs this suit, apart from the defendants' First Amendment defense; and no Illinois court has ever found liability for such a tort, and one case states "that in Illinois actions for invasions of privacy are limited to use of an individual's name or likeness for commercial purposes." Kelly v. Franco, 72 Ill. App. 3d 642, 646, 391 N.E.2d 54, 57-58, 28 Ill. Dec. 855 (1979). But the statement was dictum. The plaintiff in Kelly was trying to recover damages for pesky phone calls by a neighbor; the case had nothing to do with the false-light tort. In cases in which that tort has been charged, albeit unsuccessfully, the Illinois courts have proceeded as if it existed in Illinois. In Leopold v. Levin, 45 Ill. 2d 434, 259 N.E.2d 250 (1970), the only false-light case decided by the Illinois Supreme Court, Leopold, the surviving defendant in the Leopold and Loeb murder case, brought suit against the author of a book about the case, charging that the book (Compulsion) placed Leopold in a false light. The Illinois Supreme Court held that Leopold had no cause of action. He had forfeited any right of privacy by the notoriety of his crime; the book was represented to the public as a fictionalized rather than literal account; Leopold was a public figure; and to award tort damages would have unduly limited freedom of expression. These points would have been unnecessary to make if the court had thought that the false-light tort was not part of the common law of Illinois. Adreani v. Hansen, 80 Ill. App. 3d 726, 730, 400 N.E.2d 679, 682-83, 36 Ill. Dec. 259 (1980), is a comparable case, while Midwest Glass Co. v. Stanford Development Co., 34 Ill. App. 3d 130, 133, 339 N.E.2d 274, 277 (1975), and Cantrell v. American Broadcasting Cos., 529 F. Supp. 746, 756-59 (N.D. Ill. 1981), explicitly recognize the existence of the false-light tort in Illinois, though Midwest Glass does so only in dictum and Cantrell is not a state-court case. Incidentally, we do not read Leopold v. Levin to deny the protection of the tort to any and all public figures (Robyn Douglass, as we shall see, is a public figure). Leopold's status as a public figure was relevant to but not, as we read the opinion, conclusive on whether his rights had been violated.
Like every other division of the tort law of privacy, the "false light" tort (on which see the compendious summary in the Second Restatement of Torts § 652E, at pp. 394-400 (1977)) can be criticized, especially for overlapping with the tort of defamation. See, e.g., Renwick v. News & Observer Publishing Co., 310 N.C. 312, 312 S.E.2d 405 (1984); Kalven, Privacy in Tort Law -- Were Warren and Brandeis Wrong ?, 31 Law & Contemp. Prob. 326, 339-41 (1966); Prosser, Privacy, 48 Calif. L. Rev. 383, 400-01 (1960). Why should a plaintiff be able to circumvent the technical limitations with which the tort of defamation is hedged about by calling his suit one for placing him in a false light? Several answers are possible, however:
1. Some of those limitations seem not to reflect considered policy, but instead to be fossil remnants of the tort's prehistory in the discredited practices of Star Chamber and the discredited concept of seditious libel. See, e.g., Prosser and Keeton on the Law of Torts § 111, at pp. 771-72 (5th ed. 1984). If they are gotten around by allowing a plaintiff to plead invasion of privacy, there is no great loss.
2. The principal limitations concern the requirement of proving special damages in some cases. See, e.g., Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 267 (7th Cir. 1983). Since Robyn Douglass proved special damages (i.e., a pecuniary loss), these limitations would not have impeded her even if she had brought this suit as one for defamation. As for the other limitations in the law of defamation, Hustler has not shown how any of them, either, would have posed an embarrassment for Douglass on the facts of this case. And if she had sued for defamation she would not have had to prove (though it was not difficult to prove) that the offending materials had been widely publicized, an element of invasion of privacy that has no counterpart in the law of defamation.
3. Part of Douglass's claim is that Hustler insinuated that she is a lesbian; and such a claim could of course be the basis for an action for defamation. But the rest of her claim fits more comfortably into the category of offensive rather than defamatory publicity. The difference is illustrated by Time, Inc. v. Hill, 385 U.S. 374, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). Life magazine had presented as true a fictionalized account of the ordeal of a family held hostage by escaped convicts. The members of the family were shown being subjected to various indignities that had not actually occurred. The article did not defame the family members in the sense of accusing them of immoral, improper, or other bad conduct, and yet many people would be upset to think that the whole world thought them victims of such mistreatment. The false-light tort, to the extent distinct from the tort of defamation (but there is indeed considerable overlap), rests on an awareness that people who are made to seem pathetic or ridiculous may be shunned, and not just people who are thought to be dishonest or incompetent or immoral. We grant, though, that the distinction is blurred by the fact that a false statement that a woman was raped is actionable as defamation, see, e.g., Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L. Rep. 581, 584 (C.A. 1934), though in such a case the plaintiff is represented to be a victim of wrongdoing rather than a wrongdoer herself.
At all events, the criticisms of the false-light tort have to our knowledge persuaded the courts of only one state that recognizes a tort of invasion of privacy to withhold recognition of this subtype of the tort -- North Carolina, in the Renwick case cited earlier. Almost all signs point to Illinois' recognizing it when a suitable case arises. A more difficult question is whether the facts of this case make out a false-light tort. We must decide in what light Hustler may be said to have cast Robyn Douglass, and (by comparison with her activities as a Playboy model) in what if any sense the light could have been found to be a false one. To answer these questions we shall have to enter imaginatively into a world that is not the natural habitat of judges -- the world of nude modeling and (as they are called in the trade) "provocative" magazines.
The feature "Robyn Douglass Nude" in the January 1981 issue of Hustler occupies three full pages about a third of the way from the end of the magazine. The first page is dominated by a picture of Douglass, shown from the front, rain-splattered, wearing only an open raincoat. This is one of the photos that had been taken for the "Water and Sex" pictorial. Her mouth is open and her eyes closed. The text on the page reads:
She played Katherine, the Midwestern coed in the film Breaking Away, and Jamie, the shapely newspaper reporter in the TV series Galactica 1980 (below). But in HUSTLER seductive young actress Robyn Douglass plays herself. In these never-before-published photos this hot new star strips away her screen image to reveal the flesh of a real woman. An accomplished stage performer and TV-commercial model (Orbit gum, Gatorade and United Airlines), Robyn has ...