This is an appeal taken by Doubleday and Gwen Davis Mitchell from a judgment for damages in favor of plaintiff-respondent Paul Bindrim, Ph.D. The jury returned verdicts on the libel counts against Doubleday and Mitchell and on the contract count against Mitchell.
Plaintiff consented without prejudice on these issues in any appeal to be taken from the judgment. Defendants appealed and plaintiff cross-appealed from the judgment reducing the original jury verdict.
Plaintiff is a licensed clinical psychologist and defendant is an author. Plaintiff used the so-called "Nude Marathon" in group therapy as a means of helping people to shed their psychological inhibitions with the removal of their clothes.
Defendant Mitchell had written a successful best seller in 1969 and had set out to write a novel about women of the leisure class. Mitchell attempted to register in plaintiff's nude therapy but he told her he would not permit her to do so if she was going to write about it in a novel. Plaintiff said she was attending the marathon solely for therapeutic reasons and had no intention of writing about the nude marathon. Plaintiff brought to Mitchell's attention paragraph B of the written contract which reads as follows: "The participant agrees that he will not take photographs, write articles, or in any manner disclose who has attended the workshop or what has transpired. If he fails to do so he releases all parties from this contract, but remains legally liable for damages sustained by the leaders and participants."
Mitchell reassured plaintiff again she would not write about the session, she paid her money and the next day she executed the agreement and attended the nude marathon.
Mitchell entered into a contract with Doubleday two months later and was to receive $150,000 advance royalties for her novel.
Mitchell met Eleanor Hoover for lunch and said she was worried because she had signed a contract and painted a devastating portrait of Bindrim.
Mitchell told Doubleday executive McCormick that she had attended a marathon session and it was quite a psychological jolt. The novel was
Plaintiff first saw the book after its publication and his attorneys sent letters to Doubleday and Mitchell. Nine months later the New American Library published the book in paperback.
The parallel between the actual nude marathon sessions and the sessions in the book "Touching" was shown to the jury by means of the tape recordings Bindrim had taken of the actual sessions. Plaintiff complains in particular about a portrayed session in which he tried to encourage a minister to get his wife to attend the nude marathon. Plaintiff alleges he was libeled by the passage below:
Excerpts from "Touching" Transcript of Actual Session Page "I've come a little way," 126-27 "I'd like to know about your The minister was telling us how wife. She hasn't been to a the experience had gotten him marathon?" further back to God, "No." And all the time he was getting closer to God, he was being moved "Isn't interested? Has no need?" further away from his wife, who didn't understand, she didn't "I don't - she did finally say understand at all. She didn't that she would like to go to a realize what was coming out of the standard sensitivity training sensitivity training sessions he was session somewhere. She would be - conducting in the church. I can't imagine here in a nude marathon. She can't imagine it." he felt, he, more than felt, he knew, that if she didn't begin "Why?" coming to the nude marathons and try to grasp what it was all about, "Neither could I when I first the marriage would be over. came. "You better bring her to the next "Yeh. She might. I don't know." marathon," Simon said. "It certainly would be a good "I've been trying," said the idea for two reasons: one, the minister. "I only pray she comes." minor one is that you are involved here, and if she were in the same thing, and you could come to some of the couple ones, it would be helpful to
you. But more than that, almost a "You better do better than pray," definite recipe for breaking up a said Simon. "You better grab her by marriage is for one person to go the cunt and drag her here." into growth groups and sense change and grow . . ." "I can only try." "I know that." "You can do more than try. You can grab her by the cunt, "Boy they sure don't want that, and once they're clear they don't "A man with that kind of power, need that mate anymore, and they whether it comes from God or from are not very patient." his own manly strength, strength he doesn't know he has, can drag his "But it is true, the more I get wife here by the fucking cunt. open the more the walls are built between us. And it's becoming a "I know," Alex said softly. "I fairly intelligent place, a fairly know." open place, doing moderate sensitivity eyeballing stuff with the kids. I use some of these techniques teaching out class work." "Becoming more involved?" "Yeh, involved at the same time that I am more separated from. It's a paradox again, isn't it?" "Mmm."
Plaintiff asserts that he was libeled by the suggestion that he used obscene language which he did not in fact use. Plaintiff also alleges various other libels due to Mitchell's inaccurate portrayal of what actually happened at the marathon. Plaintiff alleges that he was injured in his profession and expert testimony was introduced showing that Mitchell's portrayal of plaintiff was injurious and that plaintiff was identified by certain colleagues as the character in the book, Simon Herford.
Defendants first allege that they were entitled to judgment on the ground that there was no showing of "actual malice" by defendants.
Mitchell's reckless disregard for the truth was apparent from her knowledge of the truth of what transpired at the encounter, and the
Appellants allege that plaintiff failed to show he was identifiable as Simon Herford, relying on the fact that the character in "Touching" was described in the book as a "fat Santa Claus type with long white hair, white sideburns, a cherubic rosy face and rosy forearms" and that Bindrim was clean shaven and had short hair. Defendants rely in part on Wheeler v. Dell Publishing Co. (7th Cir.1962) 300 F.2d 372, which involved an alleged libel caused by a fictional account of an actual murder trial. The Wheeler court said (at p. 376): "In our opinion, any reasonable person who read the book and was in a position to identify Hazel Wheeler with Janice Quill would more likely conclude that the author created the latter in an ugly way so that none would identify her with Hazel Wheeler. It is important to note that while the trial and locale might suggest Hazel Wheeler to those who knew the Chenoweth family, suggestion is not identification. In Levey [Levey v. Warner Bros. Pictures (S.D.N.Y. 1944) 57 F.Supp. 40] the court said those who had seen her act may have been reminded of her by songs and scenes, but would not reasonably identify her." However, in Wheeler the court found that no one who knew the real widow could possibly identify her with the character in the novel. In the case at bar, the only differences between plaintiff and the Herford character in "Touching" were physical appearance and that Herford was a psychiatrist rather than psychologist. Otherwise, the character Simon Herford was very similar to the actual plaintiff. We cannot say, as did the court in Wheeler, that no one who knew plaintiff Bindrim could reasonably identify him with the fictional character. Plaintiff was identified as Herford by several witnesses and plaintiff's own tape recordings of the marathon sessions show that the novel was based substantially on plaintiff's conduct in the nude marathon.
However, even though there was clear and convincing evidence to support the finding of "actual malice," and even though there was support for finding that plaintiff is identified as the character in Mitchell's novel, there still can be no recovery by plaintiff if the statements in "Touching" were not libelous.
Plaintiff alleges that the book as a whole was libelous and that the book contained several false statements of fact. Plaintiff relies in part on the above quoted conversation between plaintiff and the minister as one libelous statement of fact. Plaintiff also argues that a particular incident in the book is libelous. That incident depicts an encounter group patient as so distressed upon leaving from the weekend therapy that she is killed when her car crashes. Plaintiff also complains of an incident in the book where he is depicted as "pressing," "clutching," and "ripping" a patient's cheeks and "stabbing against a pubic bone." Plaintiff complains, too, of being depicted as having said to a female patient, "Drop it, bitch." There are also other incidents alleged to be libelous.
Defendants here rely on the cases which have considered the difference in published materials between factual statements and matters of mere opinion. While, as we discuss below, we do not feel that those cases necessarily express the rules applicable where, as here, the published material purports to state actual facts concerning the characters in a novel, we proceed, first, to examine the cases on which defendants rely.
Many cases discuss the difference between fact and opinion. The court in Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6 [26 L.Ed.2d 6, 90 S.Ct. 1537], examined the use of the term "blackmail" in a controversy between the parties over zoning, and found that, although the use of that term in some circumstances could constitute libel, in the Bresler case the term was being used figuratively and did not connote actual commission of a crime.
In Letter Carriers v. Austin (1974) 418 U.S. 264 [41 L.Ed.2d 745, 94 S.Ct. 2770], Jack London called someone a "scab," and defined the term with the phrase as a "traitor to his God, his country, his family and his class." (Id., at p. 268 [41 L.Ed.2d, at p. 753].) Again, the Austin court held that the statements were used loosely and figuratively, and there was no libel in the use of the term "traitor." Thus, words that appear factual at first glance, such as "blackmail," and "traitor" may not be factual, depending on the context in which they were used, and whether they were used figuratively.
The courts have set guidelines in determining what is fact and what is opinion. One guideline is that an alleged defamatory statement may constitute a fact in one context and an opinion in another and content of the communication is taken as a whole. In certain settings fiery rhetoric and hyperbolic statements of fact may well assume the character of opinion. (Gregory v. McDonnell Douglas Corp. (1976) supra, 17 Cal.3d 596.) Where the statements are unambiguously fact or opinion, Gregory applies, and the court determines as a matter of law whether the statements are fact or opinion. However, where the alleged defamatory
If viewed as a case involving an issue of "opinion," those cases, and other cases involving that issue, make it clear that, since there was evidence that people had identified plaintiff with the Dr. Herford of the book, the jury's finding against defendants is conclusive on that issue.
However, as we have indicated above, we regard the case at bench as involving a different issue. Defendants contend that the fact that the book was labeled as being a "novel" bars any claim that the writer or publisher could be found to have implied that the characters in the book were factual representations not of the fictional characters but of an actual nonfictional person. That contention, thus broadly stated, is unsupported by the cases.
Defendants raise the question of whether there is "publication" for libel where the communication is to only one person or a small group of persons rather than to the public at large.
Appellant Doubleday alleges several charges to the jury were erroneous, and that the court improperly refused to give certain proffered instructions by them.
"DEFENDANTS' REQUESTED INSTRUCTION NO.
"The following statements in "Touching," and no others, may be considered by you to be possibly libelous:
1. The statement at page ____, lines ____.
----------------------------------------------------------------- ----------------------------------------------------------------- ----------------------------------------------------------------- ----------------------------------------------------------------- ----------------------------------------------------------------- ----------------------------------------------------------------- ----------------------------------------------------------------- -----------------------------------------------------------------
"DEFENDANTS' INSTRUCTION NO. 9
"In order to recover for libel, plaintiff must prove that a statement in the novel `Touching" is reasonably susceptible of a libelous interpretation. In making this determination you should consider the novel as a whole and the context of said statement.
"In determining whether a statement is capable of a libelous meaning, you should construe the words according to the fair and natural meaning that will be given them by reasonable persons of ordinary intelligence."
Defendant Doubleday claims confusion in the instruction on standard of proof. The instruction on clerk's transcript page 111 explained to the jury the additional burden of proof required for "actual malice."
Defendant alleges that the court failed to instruct the jury that the author and publisher should be considered separately for purposes of liability. However, the court did instruct the jury to consider each defendant separately and to decide each defendant's case separately.
Mitchell also objects that the court erroneously prohibited evidence that plaintiff once had sexual intercourse with a participant. This was
Appellant Mitchell alleged that she and Doubleday were joint tortfeasors and any judgment against them had to be joint and several.
In addition, although plaintiff testified in broad language that he had been damaged by the publication of the book, it is not clear how much, if any, of that damage flowed from the inaccuracies in the book as distinguished from the fact that his encounter therapy had been given publicity. On this record, we cannot say that the trial court erred.
Cross-respondents argue that the compensatory damages should be reduced to a total of $25,000 against both defendants. Judge Wells entered a judgment in the sum of $50,000, by charging each defendant $25,000. The jury's verdict should be reconciled when possible. (Maheu v. Hughes Tool Co. (1977) supra, 569 F.2d 459.) Insofar as the defendants are jointly and severally liable as joint or successive tortfeasors, we enter a $50,000 compensatory damage verdict against both defendants, for which they are jointly or severally liable.
Plaintiff's cross-appeal on the issue of punitive damages is well taken and the $25,000 award of punitive damages by the jury against Doubleday should stand. The jury had discretion not to award punitive damages against one of the defendants, since as we have said before, the greater wealth of one defendant is relevant.
The judgment, as modified on the motion for a new trial, is further modified as follows:
(1) By substituting for separate judgments against defendants Mitchell and Doubleday a joint and several judgment against both of said defendants in the amount of $50,000; and
(2) By including in said judgment a separate judgment against Doubleday of $25,000 for punitive damages.
Otherwise the judgment is affirmed. Neither party shall recover costs on appeal.
Although I agree with the majority opinion authored by Justice Kingsley, I am writing a separate concurring opinion in order to comment upon the dissenting opinion. The dissent erroneously describes the majority holding as creating a cause of action for libel out of a work of fiction that attacks the techniques of "nude encounter therapy." Because of this misconception with respect to the majority's
Had the defendant author of the work of fiction limited her novel to a truthful or fictional description of the techniques employed in nude encounter therapy, I would agree with the dissent that plaintiff had no cause of action for defamation. But here we have a description of a therapist as using insulting and vulgar language of the rankest sort in addressing his patients. Apparently the dissent does not consider that such language is capable of being considered defamatory of plaintiff in his professional role of a therapist practicing nude encounter therapy. The vulgarity purportedly used by the therapist in the novel would necessarily be considered by numerous persons as completely unprofessional and defamatory if used by a professional therapist such as the plaintiff. I fail to see how any jury or any court could consider such crude vulgarity as not defaming a professional therapist to whom such vulgarity was attributed in the practice of his profession. I need not repeat this language here as it is set forth in the majority opinion.
"`The code definition of libel is very broad and has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation.'" (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546 [343 P.2d 36].) (Italics added.)
The dissent concludes that the "average reader" would not have considered plaintiff defamed as a professional therapist who used the crude and vulgar language. But the dissent does not tell us what constitutes an "average reader." I assume that novels are read by the learned, the not so learned, and persons in all walks of life. It is my view that any reader of the novel, whether familiar with a professional therapist's practices or not, might well conclude that a therapist described in the novel was a lewd and dissolute character in the practice of his profession. As indicated in MacLeod, a "publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader." (MacLeod, supra, 52 Cal.2d 536, 547.)
The case at bench is not like that of Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14 [26 L.Ed.2d 6, 15, 90 S.Ct. 1537], in which the court emphasized that "[n]o reader" could have thought that a newspaper
The dissent finds error in the instruction given the jury on the issue of identification. The use of the word "reasonably" in the instruction dissipates the dissent's view that only one person was required to understand the defamatory meaning. If one person "reasonably" understood the defamatory character of the language used, it describes what readers generally would "reasonably" understand. I see no basis for the dissent's view that the instruction had the result of mulcting defendants for the exercise of their first amendment right to comment on the nude marathon. The first amendment right to comment does not include the right to commit libel.
The dissent sees in the majority opinion a branding of a novel as libelous because it is critical of an occupational practice. This is a distortion of the majority's position. The position of the majority is simply to refuse to permit a writer and publisher to libel a person and hide under the banner of having written only fictional material. "Of course the fictional setting does not insure immunity when a reasonable man would understand that the fictional character was a portrayal of the plaintiff. `Reputations may not be traduced with impunity, whether under the literary forms of a work of fiction or in jest.'" (Middlebrooks v. Curtis Publishing Company (4th Cir.1969) 413 F.2d 141, 143.)
This novel, which is presented to its readers as a work of fiction, contains a portrayal of nude encounter therapy, and its tragic effect upon an apparently happy and well-adjusted woman who subjected herself to it. Plaintiff is a practitioner of this kind of therapy. His grievance, as described in his testimony and in his briefs on appeal, is provoked by that institutional criticism.
The decision of the majority upholding a substantial award of damages against the author and publisher poses a grave threat to any future work of fiction which explores the effect of techniques claimed to have curative value.
The majority opinion rests upon a number of misconceptions of the record and the law of libel. I mention a few of them.
Libel is a false and unprivileged publication which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation. (Civ. Code, § 45.) A libel which is defamatory without the necessity of explanatory matter is said to be a libel on its face. Language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a result thereof. (Civ. Code, § 45a.)
The complaint in this action quotes verbatim the portions of the defendant's novel which are alleged to be libelous. No explanatory matter or special damages are alleged. The only arguably defamatory matter I can find in that complaint is in the passages which portray the fictional therapist using coarse, vulgar and insulting language in addressing his patients. Some of the therapeutic techniques described in the quoted passages may seem bizarre, but a court cannot assume that such conduct is so inappropriate that a reputable therapist would be defamed if that technique were imputed to him. The alleged defamation therefore is limited to the imputation of vulgar speech and insulting manners.
The defendants asked the trial court to give an instruction to the jury identifying the matter which it could consider as defamatory. The trial court refused. Instead, the court sent the case to the jury without distinction between actionable defamation and constitutionally protected criticism. In addition, the trial court's instructions authorized the jury to
Whether or not an allegedly defamatory communication was made "of and concerning the plaintiff" is an issue involving constitutional rights. (New York Times v. Sullivan (1964) 376 U.S. 254, 288 [11 L.Ed.2d 686, 711, 84 S.Ct. 710, 95 A.L.R. 1412]; see Rest. 2d Torts, § 580A com. (g).) Criticism of an institution, profession or technique is protected by the First Amendment; and such criticism may not be suppressed merely because it may reflect adversely upon someone who cherishes the institution or is a part of it.
Defendants' novel describes a fictitious therapist who is conspicuously different from plaintiff in name, physical appearance, age, personality and profession.
Indeed the fictitious Dr. Herford has none of the characteristics of plaintiff except that Dr. Herford practices nude encounter therapy. Only three witnesses, other than plaintiff himself, testified that they "recognized" plaintiff as the fictitious Dr. Herford. All three of those witnesses had participated in or observed one of plaintiff's nude marathons. The only characteristic mentioned by any of the three witnesses as identifying plaintiff was the therapy practiced.
Plaintiff was cross-examined in detail about what he saw that identified him in the novel. Every answer he gave on this subject referred to how the fictitious Dr. Herford dealt with his patients. (See appendix C to opening brief of Mitchell.)
Plaintiff has no monopoly upon the encounter therapy which he calls "nude marathon." Witnesses testified without contradiction that other professionals use something of this kind. There does not appear to be any reason why anyone could not conduct a "marathon" using the style if not the full substance of plaintiff's practices.
Plaintiff's brief discusses the therapeutic practices of the fictitious Dr. Herford in two categories: Those practices which are similar to plaintiff's technique are classified as identifying. Those which are unlike plaintiff's are called libelous because they are false. Plaintiff has thus resurrected the spurious logic which Professor Kalven found in the position of the
Even if we accept the plaintiff's thesis that criticism of nude encounter therapy may be interpreted as libel of one practitioner, the evidence does not support a finding in favor of plaintiff.
Whether or not a publication to the general public is defamatory is "whether in the mind of the average reader the publication, considered as a whole, could reasonably be considered as defamatory." (Patton v. Royal Industries, Inc. (1968) 263 Cal.App.2d 760, 765 [70 Cal.Rptr. 44]. See Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 682 [150 Cal.Rptr. 258, 586 P.2d 572]; Rest. 2d Torts, § 559, com. (e).)
The majority opinion contains this juxtaposition of ideas: "Secondly, defendants' [proposed] instructions that the jury must find that a substantial segment of the public did, in fact, believe that Dr. Simon Herford was, in fact, Paul Bindrim was properly refused. For the tort of defamation, publication to one other person is sufficient, ante."
The first sentence refers to the question whether the publication was defamatory of plaintiff. The second refers to whether the defamatory matter was published. The former is an issue in this case. The latter is not. Of course, a publication to one person may constitute actionable libel. But this has no bearing on the principle that the allegedly libelous effect of a publication to the public generally is to be tested by the impression made on the average reader.
The jury instruction on identification.
The only instruction given the jury on the issue of identification stated that plaintiff had the burden of proving "That a third person read the statement and reasonably understood the defamatory meaning and that the statement applied to plaintiff."
The word "applied" was most unfortunate in the context of this instruction. The novel was about nude encounter therapy. Plaintiff practiced nude encounter therapy. Of course the novel "applied to plaintiff," particularly insofar as it exposed what may result from such therapy. This instruction invited the jury to find that plaintiff was libeled by criticism of the kind of therapy he practiced. The effect is to mulct the defendants for the exercise of their First Amendment right to comment on the nude marathon.
The majority opinion adopts the position that actual malice may be inferred from the fact that the book was "false." That inference is permissible against a defendant who has purported to state the truth. But when the publication purports to be fiction, it is absurd to infer malice because the fiction is false.
As the majority agrees, a public figure may not recover damages for libel unless "actual malice" is shown. Sufficiency of the evidence on this issue is another constitutional issue. (St. Amant v. Thompson (1968) 390 U.S. 727, 730 [20 L.Ed.2d 262, 266-267, 88 S.Ct. 1323].) Actual malice is a state of mind, even though it often can be proven only by circumstantial evidence. The only apparent purpose of the defendants was to write and publish a novel. There is not the slightest evidence of any intent on the part of either to harm plaintiff. No purpose for wanting to harm him has been suggested.
The majority opinion seems to say malice is proved by Doubleday's continuing to publish the novel after receiving a letter from an attorney (not plaintiff's present attorney) which demanded that Doubleday discontinue publication "for the reasons stated in" a letter addressed to Gwen Davis. An examination of the latter demonstrates the fallacy of that inference.
The letter to Davis [Mitchell] asserted that the book violated a confidential relationship, invaded plaintiff's privacy, libelled him and violated a "common law copyright" by "using the unpublished words" of plaintiff. It added "From your said [television] appearances, as well as from the book, it is unmistakable that the `Simon Herford' mentioned in your book refers to my client."
These letters gave Doubleday no factual information which would indicate that the book libelled plaintiff.
The letters did not put Doubleday on notice of anything except that plaintiff was distressed by the expression of an opinion unfavorable to nude encounter therapy — an expression protected by the First Amendment. (See Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339 [41 L.Ed.2d 789, 805, 94 S.Ct. 2997]; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600 [131 Cal.Rptr. 641, 552 P.2d 425].)
From an analytical standpoint, the chief vice of the majority opinion is that it brands a novel as libelous because it is "false," i.e., fiction; and infers "actual malice" from the fact that the author and publisher knew it was not a true representation of plaintiff. From a constitutional standpoint the vice is the chilling effect upon the publisher of any novel critical of any occupational practice, inviting litigation on the theory "when you criticize my occupation, you libel me."
I would reverse the judgment.
A petition for a rehearing was denied May 7, 1979, and the opinion was modified to read as printed above. Files, P.J., was of the opinion that the petition should be granted. The petition of the defendants and appellants for a hearing by the Supreme Court was denied July 12, 1979.