Dworkin v. L.F.P., Inc.

Periodicals, Oregon corporation; an Inc., Wyoming Park Place Market a DWORKIN, a citizen of Andrea New (Defendants) corporation, Appellants York; Moree, Wyoming a Priscilla citi Cross-Appellees, zen, individually representa and in her Jackson, Wyoming capacity tive of the

Chapter Organization DWORKIN, National Andrea a citizen of New York; Moree, Wyoming Women; Fouts, Priscilla a citi- Wyo for a Judith zen, individually representa- and in her ming individually citizen her capacity Jackson, Wyoming tive of the representative capacity Wyoming Chapter Organization of the National Chapter Organization of the National Women; Fouts, Wyo- for and Judith a (Plaintiffs) Women, Appellants ming individually citizen her Cross-Appellees, representative capacity Chapter Organization of the National (Plaintiffs) Women, Appellees L.F.P., INC., corporation, a California Cross-Appellants. LFP, Inc., designated also sometimes as 89-15, Nos. 89-16. L.F.P., Inc., corporation a California Wyoming. Court of Publications; Larry Flynt Hus d/b/a Sept. 18, 1992. Inc., Magazine, corpo tler a California ration; Larry Flynt, a citizen of Cali

fornia; Conservatorship Larry

Flynt, #P688238, Superior L.A. Court

Jimmy Flynt, Conservator; Althea Flynt

Flynt; Subscription Company,

Inc., corporation; a Nevada Island Dis Ltd.,

tributing Company, a com B.W.I. LFZ, Ltd.,

pany; company; a B.W.I.

Flynt Distributing Inc., Company, a corporation; Empire

California Inland

Periodicals, Oregon corporation; Inc., Wyoming

Park Place Market (Defendants)

corporation, Appellees

Cross-Appellants. INC.,

L.F.P., corporation, a California LFP, Inc., designated

also sometimes

L.F.P., Inc., corporation a California Flynt Publications; Larry Hus-

d/b/a Magazine, Inc., corpo-

tler a California

ration; Larry Flynt, a citizen of Cali-

fornia; Conservatorship Larry #P688238,

Flynt, Superior L.A. Flynt, Conservator;

Jimmy Althea

Flynt; Flynt Subscription Company,

Inc., corporation; a Nevada Island Dis- Ltd.,

tributing Company, com- B.W.I. LFZ, Ltd.,

pany; company; a B.W.I.

Flynt Distributing Inc., Company, corporation; Empire

California Inland

phy summary judg seeks reversal against her in her defamation ment entered against certain media defendants.1 action filed her defamation action because She concerning appeared in an statements her July, issue of published article magazine. That article was re Hustler cently Spence Flynt, us in before — denied, (Wyo.1991), P.2d 771 cert. —, L.Ed.2d 388 the issues raised here we must ex- With plore meaning speech/libel the of the free Constitution,2 provision relationship provision of and the prevailing jurisprudence Amendment First Spence Gary Shockey L. L. of Gerry the Court.3 of United States Schuster, Jackson, Moriarity & for Spence, appellants/cross-appellees case No. 89- particular, public-figure plaintiff appellees/cross-appellants in case 15 and speech/libel Wyoming’s maintains that free No. 89-16. provision precludes constitutional a state Powers, George Godfrey, Paul B. E. Jr. summary judgment pro- use of trial court’s Sundahl, Cheyenne, Godfrey and Alan of & public-figure action cedure a libel Isaacman, Carson, and Kirk N. L. David 0. against jury a media defendant. A must Hurewitz, Cooper, Epstein & issues, Sullivan public-figure plaintiff decide all Hills, Cal., P.C., appel- Beverly public-figure plaintiff The also asserts. lees/cross-appellants case No. 89-15 challenged contends that statements in case No. 89- appellants/cross-appellees pro- defamatory were falsehoods and not alternative, 16. speech. pub- In the tected lic-figure plaintiff argues that even if the MACY, C.J., THOMAS, Before challenged statements are found to be GOLDEN, URBIGKIT, CARDINE,* and protected speech prevailing under “true” or JJ. law, First Amendment under this state’s speech/libel provision free GOLDEN, Justice. the media defendant bears the burden of plaintiff proving published that the statements were appeal public-figure In this a good justifiable intent and outspoken opponent pornogra with ends. who is an * publish subjects, being argument. write and on all re- Justice at time of oral Chief sponsible right, for the of that abuse and in all frequently be referred 1. These defendants will libel, criminal, INC., trials for truth, both civil and L.F.P., singular a to in the as "Hustler”: published good with intent and designat- corporation, California also sometimes ends, Inc., LFP, Inc., L.F.P., corpo- justifiable shall be a sufficient de- [for] ed as a California Publications; fense, Larry Flynt jury having right ration Magazine, Hustler to determine d/b/a Inc., Larry corporation; law, a California and the under the the facts direction of California; Flynt, The Conservator- a citizen of the court. Superior ship Larry Flynt, L.A. Wyo.Const. art. Conservator; P688238, Jimmy Flynt, Althea # Inc., Flynt Company, Flynt; Subscription a Ne- speech press and of the 3.“[F]reedom —which Distributing Company, corporation; vada Island protected by the are first amendment from LFZ, Ltd., Ltd., company; B.W.I. a B.W.I. a abridgment by Congress among the funda- —are and ‘liberties’ Inc., Distributing Company, company; Flynt personal rights protected mental Empire corporation; Inland Periodi- California process the due clause of the fourteenth cals, Oregon corporation; Park Place Market impairment by amendment from the states.” Inc., Wyoming corporation. York, 652, 666, Gitlow v. New libel; 69 L.Ed. speech press; truth 2. Freedom of Every person may freely speak, defense.— below, reject given genuine the reasons there was a issue

For 5.Whether plaintiffs respect and af- material fact with to Dwor- public-figure claims incest, advocacy bestiality granting trial court’s sum- kin’s firm the order sex children. against plaintiffs mary judgment all of the on all of the counts contained below BACKGROUND

complaint. public-figure plaintiff, Andrea Dwor- (hereinafter Dworkin), outspoken kin is an ISSUES opponent pornography engaged who has presented public-figure plaintiff vigorous and robust national debate these issues for review: subject. accomplish She has worked to give full 1. Whether Court will passage of an ordi- anti-pornography and meaning Wyoming’s force Consti- major nance cities the United States provision provides tutional and has written books and articles on a “the to determine the [has] variety subjects, including opposition her and the under the direction of facts pornography support and her femin- in a case. the court” libel ism and the women’s liberation movement. protect- publication 2. Whether public figure. She is an admitted “opinion” and whether not the de- ed litigation In by earlier filed Dworkin is opinion termination of what is left to against some of the same media defendants under jury Wyoming’s Constitution. case, lawyer she represented by was publication was made 3. Whether Gerry Spence. See Dworkin v. Hustler “actual malice.” Cir.1989), Inc., Magazine, (9th 867 F.2d 1188 denied, 4. the trial court invaded the Whether rt. ce province 59, 107 and resolved a dis- Spence’s L.Ed.2d 26. As a result of puted against factual issue Andrea Dworkin, representation of de the media Dworkin. published in this case fendants an article July, magazine 1985 issue of Hustler rephrased media defendants the is- featuring Spence as “Asshole of way: sues in this Month.” 793. Spence Flynt, 816 P.2d at 1. the statements made about Whether to speaking concerning In addition of and plaintiff Andrea constitu- Dworkin were Spence, article Af refers to Dworkin. tionally protected opinion. statements Spence that stating ter on of “the behalf summary judgment was im- 2. Whether guy” monetary little has won substantial I, under 20 of proper Article Section against big judgments corporations Wyoming Constitution. list, to would like add Hustler to his I, a. Whether Article 20 for- Section speaks of Dworkin: article summary judgment in action. bids a libel guy” His client “little militant lesbian responsibility Whether the b. court’s Dworkin, shit-squeez- feminist Andrea a grant the First under Amendment ing right. in her In her sphincter own summary judgment on is- publicity-grab Dworkin has decided latest superseded can by provision sues a for privacy to sue Hustler invasion of constitution. the state among things. other Dworkin, plaintiff 3. Whether Andrea seems to be an odd Dworkin bedfellow figure, coming public met her burden folks,” “just “family Spence. for values” convincing with clear and evi- forward all, After Dworkin is one of most that false- published dence defendants foul-mouthed, on abrasive manhaters knowledge about her with that hoods fact, Indianapolis Earth. In con- subjective they were false or with a templated antiporn ordinance co-au- probable falsity. awareness Dworkin, she asked its thored was stay her publication supporters away Dwor- for fear Whether about presence defamatory. repulsive kin false and would kill the statute was * * pleadings ment on the as to the libel and Considering Dworkin advo- *. that claims, chil- bestiality, outrage incest and sex with and the media defendants cates dren, Tongue or, appears Gerry “this judgment pleadings it on the moved for pro- interested Spence Hire” is more alternative, summary judgment on all the tradi- account than moting his bank hearing on claims. The trial court held a he he’d like us believe tional values letter, motions, issued a decision then cherishes. finally denying order entered an suit initiated is a nuisance This case granting the media plaintiffs’ motion and dish out Dworkin, crybaby who can appeal defendants’ motion. This followed. it. The clearly can’t take criticism but brief, appellate initial Dworkin’s speech, some- freedom of real issue is only relating to her she addressed issues is entitled thing Dworkin we believe even ap In the media defendants’ libel claim. anyone to, deny to which she would but brief, plain pellate they asserted that the Any at- doesn’t share her views. who had the other three claims tiffs abandoned freedoms is Amendment tack First justice, and con (outrage, deprivation foaming-at-the- [,] Spence’s all harmful to raising relating spiracy) by not issues think especially. You’d mouth client appeal. reply In Dworkin’s them their Spence’s stature would know someone of brief, plain appellate she contended a censor like than to team with better the other three tiffs had not abandoned Dworkin. the trial claims. She contended publication of this result of the As a those court’s decision letter was silent as to article, lawsuit. She filed this Dworkin only claims and covered dismissal of Dwor- plaintiffs named was one of three disagree. The kin’s libel claim. We media Pris- plaintiffs were action. other two judgment on the defendants’ motion Moree, individually represen- and as cilla or, alternative, summary pleadings Jackson, Chapter of tative judgment directed to “all counts of the Women; and Organization for the National letter, complaint.” In its decision the trial Fouts, repre- individually and as Judith explained court that the article was consti Wyoming Chapter of the sentative of the that, tutionally protected and as a matter Organization for Women. National law, the media defendants were entitled All four claims. complaint contained judgment. grant The trial court’s order the media plaintiffs alleged three claims: summary judgment ed their motion for defendants, attack- publishing the article which directed to all claims. It is clear attorney, sought to de- ing plaintiffs’ the court that the trial court’s order obtaining justice, as to this prive plaintiffs Const, 1, 8; by Wyo. disposed art. failure to guaranteed of all claims. Plaintiffs’ § publication and distribu- media defendants’ appeal relating raise on issues to the non- tort of tion of the article constituted the libel claims constitutes abandonment outrage (intentional infliction of emotional Highway those issues. Comm’n See State distress); publi- defendants’ and the media Co., (Wyo. 371 P.2d 408 Triangle v. Dev. of the article consti- cation and distribution Connell, 1962), Wyuta and v. Cattle Co. conspiracy to discredit tuted an overt act of if the Wyo. 299 P. 279 Even plaintiffs attorney and to and their claims, plaintiffs had not those abandoned rights un- interfere with their exercise today dispositive our decision of those For the der the Constitution. issues. claim, alleged that fourth alone Dworkin remaining now turn to the issues We dis- publication the media defendants’ our review. of the article a libel tribution constituted claim, plaintiffs her. Under each DISCUSSION damages sought fifty million actual dollars Const, 1, 20, pre- Wyo. art. Whether punitive one hundred million dollars summary judgment in libel ac- cludes damages. tions. discovery, follow- parties conducted Const, 20, says that judg- Wyo. ing plaintiffs moved [e]very person may freely speak, Flynt, write summarily which we rejected publish subjects, being respon- on all same contention Dworkin’s counsel. right, sible for the of that and in abuse Historically, our state trial courts libel, criminal, all trials for civil and both granted summary have judgments in libel truth, published good with in- actions and this court has many affirmed ends, justifiable tent and shall be a [for] them;5 this court has not had occasion defense, jury having sufficient until fully precise now answer issue right law, to determine the facts and the has, Dworkin raises here. This court how under the direction of the court. ever, had past occasion in the to consider language constitutional question, Focusing provision’s on the lan and we find that consideration illuminating. guage having “the jury to deter In Spriggs Cheyenne Newspapers, 63 mine the facts and the under the di Wyo. (1947), 182 P.2d 801 this court court,” rection of the Dworkin asserts that affirmed a verdict in favor of a media granted preferential protec “our framers defendant after a review of the record con victims, namely, tion” to libel that no court vinced the court that the allegedly defama can summary judgment enter in a libel tory articles were published true and with action. Dworkin contends that all issues in good intent and for justifiable ends. presented a libel action must be to and Among points the various appeal, raised on jury. develop decided prove To plaintiff insisted closing argu that in position respect her with to this state con ment “he was argue entitled to either his Dworkin, provision, stitutional any oth own view or the view of others concerning similarly er litigant, situated must use “a the law under which the case should be precise, analytically approach. sound entirely decided apart from what the court provide Counsel must [this court] stated the law of this state in fact was.” proper arguments and briefs ensure the Spriggs, Wyo. 182 P.2d at 804. growth important future of this area of reviewing After the decisions of sister Utter, law.” F. Advancing Robert State having states6 constitutional provisions Court, Trial, Constitutions Oct. textually similar to this state’s free Regrettably, at 45. Dworkin has failed to speech/libel provision, this court concluded support her assertion and contention with that the trial court had correctly ruled the appropriate analysis, legal plaintiff could not discuss the law of the authority, cogent argument. or In the face case independently of the giv instructions failure, of such our rule has been swift and by en the jury guid court to the for their sure: alleged we refuse to consider the ance. 63 Spriggs, Wyo. at 182 P.2d at Co., Burg Ruby Inc., error. v. Drilling 809. In its review sister states’ deci 783 P.2d In (Wyo.1989). 153 this in sions, explored this court “judicial the his stance, however, in order to foster and tory provisions of this and other like promote interpretation the of our state con other state outgrowth constitutions as an through appropriate analytical stitution English early and American law concern * * technique,4 we choose to consider the ing subject issue of criminal libel presented fully Spence more than we did in Spriggs, Wyo. 63 at 182 P.2d at 804. Oil, Washington Inti, 4.Justice Robert F. Utter of the Su- 5. Chemical & Atomic Workers 748 P.2d Blount, (Wyo.1987); preme particularly 283 Court has Williams v. 741 co-authored a P.2d (Wyo.1987); Harriscope 595 MacGuire v. Broad- helpful practicing lawyer article for the on for- Co., casting (Wyo.1980); McMurry 612 P.2d 830 mulating presenting a state constitutional Publications, Inc., (Wyo. v. Howard 612 P.2d 14 argument. See Robert F. Utter and Sanford E. 1980); Co., Broadcasting Adams v. Frontier 555 Pitler, Presenting Argu- a State Constitutional Foe, (Wyo.1976); P.2d 556 v. 443 P.2d Phifer Theory Technique, Comment ment: 20 (Wyo.1968). 41 A.L.R.3d 1078 (1987). Appendix Ind.L.Rev. 635-77 See A to opinion comprehensive, for a but not ex- Colorado, Missouri, Mississippi, 6. and Ohio. haustive, list of law review articles on the sub- 429-37, Spriggs, Wyo. See at 63 182 P.2d at 805- ject interpretation of state constitutions. OS. 910 lawful, the court review, never so harmless or court doubted that light In prevent instruction, powerless to his convic- would be earlier jury of a the correctness punishment, jury should the de- State, tion and Wyo. 24 in Nicholson v. examined that, the matter judgment, cide in its (1916), that to the effect 157 P. 1013 charged jury would be was libelous. disregard court’s instruc jury could judge meaning of the Constitu- apply jury’s own notion tions statutes, were tion and whether statutes Wyo. at Spriggs, the law was.

what is, valid, the common law what the what 427, 182 Drawing on decisions at 804. P.2d short, ques- all privilege is—in law Ohio, and, Colorado, Missouri, par from could arise on the tions of law which ticular, Mississippi, this court demonstrated trial. provision that our constitutional Wyo. 182 P.2d at England Spriggs, practice

grew out of the the Fox is known as modified what accept rea- This court continues to that prosecu- Act. Prior to that act Libel per- soning For further historical as valid. jury was for libel the verdict tions purpose of the Fox Act to spective on the only question submitted to special; the restoring to protect speech by freedom of alleged jury being whether the libel same, power in greater, no juries the but published and whether the lan- had been prosecutions they than had in other libel supported innuendo. The guage prosecutions, see criminal Construction of deter- or no libel was question libel Statutory Provision Constitutional Act the By the court. the Fox mined Giving Jury Power to Determine Law general jury authorized to return Slander, and Facts in Action Libel for guilty, as in guilty, or not (1915 D) (1915); verdict Ann. Cases 1261 Anno- cases, thus decide the tation, criminal provision other shall Effect of libel, formerly or no question of libel the law and the in libel determine facts cases, L.R.A.(N.S.) (1914); the court. decided Annota- tion, jury shall provision that 427-28, 182 Wyo. at P.2d at 804 Spriggs, 63 Effect of the law and the in libel determine State, Wyo. (quoting facts Nicholson cases, L.R.A.(N.S.) 207-12 (1916)). P. Although Spriggs this court reviewed quoted approv- Spriggs this court Wyoming’s history of the substance of State, 98 Miss. 54 So. from al Oakes provision, speech/libel free (N.S.) 79, 83, 207: 33 L.R.A. history of this court did not review the how juries If to determine have part of state provision became a themselves, free from the law of libel history can a valu- constitution. That court, the result control of the would be interpreting scope provi- of a aid able uncertain, only that the law would be constitution. F. sion of the state Robert dif- because of the different views which Pitler, Presenting E. Utter and Sanford it, their juries might ferent take of but Argument: Constitutional Com- State erroneous, judgment of the however Theory Technique, 20 Ind. ment on final; neither that event would be 635, (1987). In L.Rev. our effort to have trial court nor this court would language the constitutional understand same, could any right to review begin of question here we with review defendant, however grant no relief to a proceedings of our state constitutional erroneously may convicted. he have been convention. right to decide The court would have no 1889, might Convening September, arise on the con- any question of law which trial, copies pro- had of the demurrer or otherwise. stitution’s framers citizen, ratified constitutions posed under this construction and soon-to-be Should a Dakota, libel, Idaho, Dakota, Constitution, North South indicted for of of the be Montana, Washington.7 Richard K. charged to be such be and the matter effective the same the constitution became 7. Idaho: 5, 1889. day. ratified November Constitution Union, 3, 1890; July Idaho admitted to Prien, Background Wyoming ming (1920). Unfortunately, as we have of Constitution, 1956) iii (Aug. (unpublished noted,10 previously reports of the several Thesis, University M.A. Wyoming); T.A. standing committees do not exist. Equally Larson, History Wyoming, 246-47 unfortunate, our proceedings, review the reveals, As our own examination particular and in Mr. Baxter’s recorded dis- out, points and as Prien side-by-side com- reported debates, cussions as in the floor parison of article 5 of the South Dako- § has not any revealed specifically comment Constitution, ta Wyoming’s with art. concerning the speech/libel free constitu- speech/libel the free provision in § provision tional in question. In the ab- question, nearly reveals identical text.8 helpful sence of information from these Prien, See, supra comparison at 49-50. A sources, look recognized we to other Const, II, 7, with Mont. art. reveals close- sources. ly similar text as According well.9 to our agree We with Prien’s conclusion that it research the Journals and Debates of likely the framers borrowed our free the Constitutional Convention speech/libel provision from (1889), Wyoming State the framers es- Dakota, South with some giv- consideration tablished Committee No. 1 to consider the en provision. Prien, supra, Montana preamble rights declaration of arti- Working likelihood, 49-50. with that charter, cle of the state of which the free have turned to judi- those sister states for speech/libel provision part. is a Id. at 18. opinions cial might give guidance. us George W. Baxter of County Laramie was In Brodsky Co., v. Journal Publishing 22; on that committee. Id. at see also S.D. (1950), N.W.2d 855 the South Peterson, Henry J. The Constitutional Dakota Court affirmed a directed Wyoming, Convention University of verdict for the media defendant in the face Science, VII, Publications Vol. plaintiff’s contention that it was for (1940). According No. 6 to Melville C. jury to determine whether or not the Brown, president convention, Mr. published article plaintiff. referred to the Baxter “the author of much of our Const, reciting 6, 5, After S.D. upon rights.” declaration Brown, Melville C. plaintiff which the relied and which as not- Making,” “Constitution Address Given at a nearly textually ed is identical to our free Meeting of Cheyenne, Pioneers at Wyo- speech/libel provision, the court stated: ming, Winter 1898 reprinted Wyoming Collections, Historical First Report provisions Biennial Constitutional and statutes of the State Wyo- Historian of the having import State of similar have adopted been Montana: 8. S.D.Const. art. 5:§ Constitution ratified October Mon- 1889. Every person may freely speak, write and Union, tana admitted to the November publish subjects, being responsible on all 1889; the constitution became effective the libel, right. the abuse of that In all trials for day. criminal, same truth, both civil and lished, pub- North Dakota: good justifiable motives and for ends, Constitution ratified October shall 1889. sufficient defense. The Union, North Dakota admitted to the shall have the to determine No- the facts and 2, 1889; vember the law under the the constitution direction of the court. became day. effective the same II, 9. Mont.Const. art. 7:§ South Dakota: passed impairing lawNo shall be the freedom Constitution ratified October speech; every person speak, shall be free to Union, South Dakota admitted to the No- publish any write or whatever he will on 2, 1889; vember the constitution became subject, being responsible for all abuse of that day. effective the same liberty; prosecutions and that in all suits and Washington: libel, may given for evidence; the truth thereof Constitution ratified October 1889. Wash- jury, and the under the direction of Union, ington 11, admitted to the November court, shall determine the law and the 1889; the constitution became effective the facts. day. same Ph.D., Kettleborough, State, 401,

Charles The State Consti- (Wyo. 10. Billis v. 800 P.2d 413-14 (1918). 1990). tutions 912 Springer Swift, v. opinions having jurisdictions from sister jurisdictions.

in other 171, 208, 78 A.L.R. textually provisions, 59 S.D. 239 N.W. similar constitutional Const, 1, 20, have Wyo. 1171. A review of the cases which hold that does justifies provisions preclude construed such court’s use of sum- trial from they conclusion that have not taken mary judgment procedure in a defamation imposed upon jury the court or action. determining a communi-

duty of whether capable defamatory cation is of a mean- Summary judgment procedure in li- Eastwood, 42, ing. Egan v. 36 S.D. 153 bel cases. 917; C.J.S., Slander, N.W. 53 Libel Co., Broadcasting Adams v. Frontier In 223(b); see annotation in 33 also 556, (Wyo.1976), 555 P.2d 562 this court * * * pub- L.R.A.N.S. 207. Whether the recognized plaintiff’s that a libel status as li- lished article in the instant case was public figure invokes the United States question per se was a for the belous Supreme Court’s actual malice standard court. recognized adopted liability. We had

Brodsky, 42 at 857. N.W.2d Foe, v. standard in 443 P.2d that Phifer Brodsky helpful 870, more than for our (Wyo.1968). Even 41 A.L.R.3d 1078 We of purpose question on the immediate applied affirming ten have that standard in Oil, power questions of See, court’s to decide law e.g., summary Chem judgments. Pasma, v. Williams a libel case is 202 ical & Atomic Int’l v. Sinclair Workers denied, 66, 212, (1982), cert. Mont. 656 P.2d Corp., 283, Oil (Wyo. 748 P.2d 287-89 2122, 103 77 L.Ed.2d 461 U.S. S.Ct. Publications, 1987); McMurry v. Howard There, 1302 the Montana Inc., (Wyo.1980); 612 P.2d 17 squarely held that that state’s free Harriscope v. Broadcasting MacGuire speech/libel provision, textu Co., (Wyo.1980); 612 P.2d 831-33 cf. ours, preclude ally similar to does not sum Blount, Williams v. (Wyo. 741 P.2d 595 mary judgment affirming In libel cases. 1987). judgment favor of a member prevents The actual malice standard committee, of the state Democratic Dworkin, public figure, such as from quoted court from its earlier decision recovering damages defamatory for a Co., Opinion v. Pub. 114 Mont. Griffin relating public falsehood to a matter of 502, 512, (1943): 138 P.2d proves convincing concern unless she with While our Constitution like that of Mis- clarity that the statement was made with Colorado, souri, Wyo- South Dakota and malice, is, knowledge actual that ming provides in libel suits “the disregard it was false with reckless court, jury, under the direction of the whether it was false or not. Milkovich v. facts,” shall determine the law and the Co., 1, 10, Lorain Journal 497 U.S. yet clearly the decisions show that 2695, 2707, (1990); S.Ct. L.Ed.2d jury function of the court and is not Harte-Hanks Communications Inc. v. greatly different the trial of libel from 657, 659, Connaughton, 491 U.S. 109 S.Ct. it is in other cases. what 2678, 2681, (1989); 105 L.Ed.2d words, In it is for other the court and Falwell, v. Magazine Hustler Inc. 485 U.S. pass upon not the demurrers to 46, 50, 108 876, 878-79, S.Ct. 99 L.Ed.2d complaint; upon admissibility (1988) (same applies standard action evidence; nonsuit; upon motions for alleging intentional infliction of emotional verdict; upon motions for a directed distress); Corp. Bose v. Consumers Union upon upon trial motions for a new U.S., Inc., 485, 502, motions to set aside verdicts or vacate 1949, 1960, (1984); 80 L.Ed.2d judgments. Butts, Publishing Curtis Co. 388 U.S.

Pasma, 656 P.2d at 215. 130, 162, 1975, 1996, 87 S.Ct. 18 L.Ed.2d (1967); New York Times Co. history case view of our 1116-17 Sullivan, 254, 279-80, provision, helpful our constitutional and the

913 710, 686, 706-07, 725-26, 11 private L.Ed.2d 95 the reputation interest in is over- (1964). by larger interest, A.L.R.2d 1412 That actual malice borne the by secured the Constitution, standard derives from the United States of dissemination truth.” Garrison, Supreme interpretation 72-73, of 379 U.S. at 85 Court’s the First S.Ct. at 215, 13 speech free L.Ed.2d 132. Amendment’s clause.11 speech/libel free This state’s constitu- why is no reason we “[TJhere provision tional is textually different from apply Wyoming should not constitutional speech the free clause of First provisions the Amend- ju the of our administration ment to the risprudence, United States Constitution. long they as as not infringe do comparison upon the its text of federal the constitutional of standards speech/libel counterpart, Wyoming’s free United States Constitution.” Richmond State, provision clearly 1217, is more (Wyo.1976). elaborate 554 P.2d 1223 Expansive protection worded. for freedom speech/libel Does this free state’s constitu expression of seems to invited provision infringe upon tional the First “Every person may does, state text that If freely Amendment? it if is it more re speak, publish subjects, (less all protective) write strictive of the fundamen being responsible right for of tal speech the abuse to freedom of than the * * right provision, interpretation This like similar of that United provisions thirty-eight Court, which, course, state Supreme other consti- States of is tutions, phrased right, as an affirmative permissible, deemed the minimum then this nega- constitutionally contrast to First Amendment’s court is obligated apply to phrasing government (more tive protective) restrains ac- the less restrictive feder Interpretation State Consti- VI; tion. al interpretation. art. U.S. Const. tutional 1324, 1, Rights, Wyo. 21, 95 L.Rev. 24; Harvard Const. art. 37 and art. § § (1982). Yet, State ex rel. Bd. language the additional State Law Mansfield pub- Examiners, provision, 174, of the state (Wyo.1979); that truth P.2d Burk, Doe v. good justifiable lished with intent for (1973). P.2d On libel, hand, sug- ends is a sufficient defense other if this state’s free gests protection speech/libel a contraction of the provision for constitutional is less expression. See Garrison v. State Lou- (more protective) restrictive than First isiana, 7,n. interpreted Amendment as the United (1964) Court, 214 n. n. then, course, 13 L.Ed.2d States 130-31 we jurisdictions having similar, for a list of are free our apply provision state Richmond, seemingly enlarges restrictive constitutional or right. stat- 554 P.2d at See also Frederic utory provisions. Jesup 1223. Law Stimson, the Federal and case, however, In this unnecessary it is States,

State Constitutions the United engage rigorous us to examina- 60-61, pp. 144-46 §§ required tion to determine whether our suggests speech/libel provi- Additional evidence a contrac- state free tion protection expression provides protection under sion more for freedom Const, constitution; our Wyo. speech state art. afforded prevailing than under pertinent “[Ejvery per- part: states federal First Amendment That is sim- law. son injury reputation ply public- for an done shall federal because the floor in sale, justice figure/media field, have administered without de- defendant libel to be course, case, New delay.” applied adequately protects nial or Of under this doctrine, York Times Garrison recog- liability as media here from defendants nized, public Dworkin, And, “where criticism is of offi- shall as show. our business, prior illustrates, public richly cials and their conduct of law libel case states, pertinent Reynolds, 12. The First Amendment See Mills v. 837 P.2d 68-70 * * * J., 1992) (Golden, part: "Congress abridg (Wyo. dissenting, shall make for a no law discus- ing speech, press* * *." origins meaning Wyo.Const. or of the sion of the freedom 8). 914 Thus, readily existing the federal doc- 17.

court has embraced constitutional doctrine speech of free specific adequately “breathing space” trine area secures the however, say, jurisprudence. That is not to expression require which “freedoms of in different area of Id., at -, a future case order to survive.” 497 U.S. speech jurisprudence, this court 2706, free would 110 S.Ct. at 111 L.Ed.2d at 18.13 One necessary effort to de- not undertake existing protective rule of that constitution scope speech/li- our free termine the full opinion al doctrine is that “a statement of provision. constitutional bel relating public to matters of concern which provably does contain a false connota In cases in which the fundamental protec tion will receive full constitutional involved, here, speech of freedom of as See, e.g., Philadelphia tion.” Id. News declared: this court has 767, papers, Hepps, Inc. v. 475 U.S. 106 procedural protection The best for free- 1558, 89 L.Ed.2d 783 speech, dom of United States [the provides protection doctrine also full Supreme designed standard is Court] “statements ‘reasonably that cannot [be] remedy protect, is found of sum- interpreted stating as actual facts’ about mary judgment which the courts have Milkovich, an individual.” 497 U.S. at freely utilized in such cases. The chill- -, 2706, 110 S.Ct. at 111 L.Ed.2d at 19. ing litigation effect of and the associated See, Falwell, e.g., 485 atU.S. 108 S.Ct. expense frequently and inconvenience at 99 L.Ed.2d at 48. As the Court have led courts to conclude that sum- Milkovich, stated in provides “This assur mary judgment appropriate is the most public ance that remedy in an instance such as this in debate will not suffer for ‘imaginative chilling expression’ order to minimize that lack of effect as or the ‘rhe possible. hyperbole’ much as torical traditionally which has added much to the discourse of our na Adams, (citations omitted). 555 P.2d at 566 Milkovich, -, tion.” 497 U.S. applying In the actual malice/con S.Ct. at 111 L.Ed.2d at 19. vincing clarity standard in the context, judgment this court follows the As revealed analysis Court’s approach any same it uses in other sum Milkovich, of the statements reviewed in mary judgment setting: we have the same determining alleged whether an defamato court, task as the trial have the same ry purports falsehood imply state or court, material as we follow the individual,” “actual facts about a court Oil, same standards. Sinclair 748 P.2d at type used, must scrutinize language 288-89. meaning context, of the statement verifiable, whether the statement is and the 3. the Hustler statements are Whether broader social circumstances in which the actionable as a matter law. Id., at -, statement made. 497 U.S. Analysis. A. Milkovich 2706-07, 18-19; 110 S.Ct. at 111 L.Ed.2d at dissenting Brennan, J., Milkovich, opinion see the United States -, 497 U.S. at opinion Court’s recent in First S.Ct. at Amendment jurisprudence, L.Ed.2d at 21. libel the Court refused to recognize, in addition to the established safeguards in the freedom of Application B. Analy- Milkovich area, speech “still another first amend sis. protection defamatory

ment-based categorized ‘opinion’ statements that are as We shall now scrutinize the Hustler ” opposed Milkovich, using to ‘fact.’ statements about Dworkin the ana- at -, lytical technique applied 110 S.Ct. at 111 L.Ed.2d at in Milkovich. Sullivan, Philadelphia Newspapers, Hepps, Inc. v. 376 U.S. at 84 S.Ct. at 767, 772, 1558, 1561, (1964)). 89 L.Ed.2d L.Ed.2d at A.L.R.2d (1986) (quoting New York Times v. (cid:127) type language safeguards, The used. tional First Amendment of cannot, language law, of as a matter form sig of language may kind used The the basis for a defamation claim. a purporting nal readers that writer is not actual, imply state or known facts. In (cid:127) Milkovich, the referred meaning to Greenbelt the statement in con- of Ass’n, Bresler, Coop. Publishing Inc. text. 6, 1537, 6 398 U.S. 26 L.Ed.2d editorials, reviews, po Certain formats — (1970),where the Court held that the word cartoons, monthly litical signal features — “blackmail,” by newspaper when used a average expect reader to a departure developer’s negotiation a characterize land from actually what is known the writer city, not position was slander explained as case, fact. As in another libel spoken and not when written. peruses reasonable reader who “[t]he [a] explained The Court that “even the most Op-Ed column on page the editorial or is perceived have careless reader must fully aware that the statements found hy the word was no more than rhetorical there are not ‘hard’ printed news like those perbole, vigorous epithet a used those on page the front or elsewhere the news developer’s] negotiat who considered [the newspaper.” sections of the Ollman v. ing position extremely unreasonable.” 970, Evans, (D.C.Cir.1984), 750 F.2d Greenbelt, 14, 398 U.S. at 90 S.Ct. at cert. denied 471 S.Ct. Falwell, 26 L.Ed.2d at 15. the Court Smolla, L.Ed.2d 278 See also parody held an ad reasonably “could not supra, 6.12[4], cases). (collecting n. 252 § interpreted stating have been actual public figure facts about involved.” appears The Hustler article under Id., 485 U.S. at at S.Ct. heading “Bits and Pieces” is and a 48. In L.Ed.2d at Old Dominion Branch regular monthly of feature. The tone Carriers, Nat’l Ass’n No. Letter pointed, exaggerated article is heavily Austin, 264, 284-86, AFL-CIO invoking laden with emotional rhetoric first 2781-82, L.Ed.2d principles. amendment We are convinced (1974), 762-63 the Court found the word average fully that the reader is aware that in literary “traitor” a definition of a union the statements found there are not “hard “scab” it actionable since was used expect news.” Readers of that column loose, figurative a “in sense” and was that Hustler’s writers will make strong “merely hyperbole, lusty rhetorical a and opinionated column, statements in that a imaginative expression contempt felt recognized of opinion home and comment. epithets, by union members.” vul Abusive proposition very That is inherent profanities garities and are nonactionable. regularly appearing notion of a “Bits and Smolla, Rodney 4.03, Law of Defamation page Pieces” akin which is editorial 6.12[10], 4-09 to -10 and 6-52 at page. (1991); see cases cited therein. The ad language easily nature of such hominem (cid:127) Verifiability the statements. which, it hyperbole identifies as rhetorical are four There statements a reasonably as matter cannot appear likely article which more to be ob Clearly understood as statement of fact. jectively capable proof disproof falling category into this are Hustler’s say They about will more which we below. characterizing Dworkin as: statements “ lesbian; supporters are feminist,” that Dworkin guy’ ‘little militant lesbian antipornography ordinance asked “shit-squeezing sphincter in her own stay away; bestiality, her foul-mouthed, she advocates right,” “one the most children; Earth,” incest and sex with and she initi “repulsive abrasive manhaters ated a nuisance suit. remainder presence,” cry-baby “a who can dish out article, however, it,” clearly criticism but can’t take statements are not client,” being “Spence’s foaming-at-the-mouth capable proved by objective means “mili- prevailing and “a censor.” Under constitu- as either false true. The terms exaggerated hysteri feminist,” sphincter,” epithets, rhetoric “shit-squeezing tant hyperbole expected. abrasive are “The offend “publicity-grab,” “foul-mouthed cal “foaming-at-the- are, manhater,” “cry-baby,” ing phrases this article unfortunate mouth,” hopelessly are language and “censor” ly, representative type amor imprecise, vague, indefinite generated dispute in a such a sub over loosely definable phous. These terms are Inc., 860 ject.” Magazine, Ault v. Hustler in such a vari subjectively interpreted (9th Cir.1988), denied, F.2d cert. support an they that cannot ety of contexts 103 L.Ed.2d 489 U.S. “Lacking clear for defamation. a action to evalu of verification with which method agree * * * with said the Ninth We that may the trier of fact ate a statement Appeals: of state- Circuit Court “Ludicrous to improperly tend render a decision based ments are much less insidious and debilitat- disapproval or of the con upon approval ring of ing than falsities that bear the author, statement, or its the its tents of outra- truth. We have little that the doubt Ollman, F.2d at 981. See subject.” recognized geous and the outlandish will Smolla, supra, also § 6.12[5]. Hustler, they are.” for what Dworkin (cid:127) reflects Vulgar speech F.2d at 1194. The broader social circumstances the of the user such more on character which the statement was made. lan- language object than on the of such importance context The of social guage. Publishing v. Bird- Curtis Co. recognized by the United States has been (5th Cir.1966). F.2d song, 360 observed, has Supreme Court. concerning the “scab” nonactionable words analysis Having applied the Milkovich applied employee as an “traitor” most of the statements in the Hustler arti picket line, exag crossed a that “such who cle, closely must those we examine more place was in labor gerated rhetoric common likely appear four statements which more Dominion, at disputes.” Old objectively capable proof or dis to be 2782, 41 L.Ed.2d at 763. Just as proof. we examine these four state As man historical confrontation with labor’s ments, warning are that we mindful of presents widely recognized a are agement bearing engage, must “not without bruising rough brawling, na in which us, in a clearly in mind context before fare, daily so does and tumble debate parsing single sentence or Talmudic a social, moral, be political clash two, occupied philo if we were with a antipornogra- pornographers and tween enterprise linguistic analysis.” sophic phers. antipornography Dworkin is an ac Ollman, 750 F.2d at 991. whose activities are in the form of tivist is a The four statements are: Dworkin advocacy political involve public direct “lesbian”; Indianapolis contemplated participated drafting ment. She antipomography ordinance co-authored Indianapolis antipornography ordinance her, supporters “stay away asked her to was enacted and unconstitu that then held repulsive presence her kill for fear would Ass’n, Am. tional. See Booksellers Inc. it”; bestiality, incest Hudnut, Dworkin “advocates Cir.1985). (7th 771 F.2d 323 Hus children”; sex with and Dworkin initi- and Pieces hom- tler’s Bits article is an ad against a “nuisance suit” Hustler. against so ated inem attack an advocate of a light these in the cial, consider statements political viewpoint contrary moral and We legal having question of Dworkin’s burden to Hustler’s. statements in only ongoing prove convincing clarity with uttered context of an were statements, destroy falsity of the but also that in which Dworkin seeks to debate knowledge In uttered them industry part. of which Hustler Hustler is falsity disregard destroy Hustler Dwor- reckless response, seeks to seen, As shall be Dworkin has not viewpoint by vilifying its advocate. truth. kin’s confrontation, judg- her burden in this spirited a heated and satisfied such setting. part, abusive ment of which statements are provided

Hustler has Dworkin’s deemed Miss Dworkin too radical for writing to its support community, own statement that conservative Mac- Professor argument brought she is lesbian.14 Kinnon in as Neither her was a consultant argument the trial court nor in her before this challenged

before court has Dworkin It is that true neither these arti- two Thus, particular this statement. she has cles on which Hustler directly relies states carry proof failed to her burden supporters actually of the ordinance instance. “stay us, asked her away.” It is clear to however, gist, sting, that the the hurt sup To bolster the statement of the articles and Hustler’s statement porters Indianapolis ordinance asked based on them was that she was not hired stay away repul Dworkin to her fear as a consultant because it was her felt it, presence provid sive kill would Hustler style would alarm sup- the conservative pieces ed two first evidence. The porters of the ordinance. The statement Village entitled, an article from the Voice substantially was true. As this rec- court Censorship in Name the Feminism. ognized Tschirgi v. Lander pass This article to attempt describes Journal, State 706 P.2d 1120-21 antipornography It ordinance. reads: (Wyo.1985),it is to sufficient show that the Indianapolis, though, is not Minne- imputation substantially true. See also apolis. Mayor When heard Hudnut Smolla, supra, 5.08-.11. Repub- the Dworkin/MacKinnon a bill at conference, may lican he didn’t think of it as a It also be said Hustler drew feminism, promote to measure but from a inference the article that Dworkin weapon in the war smut. He recruit- was “stay away.” asked to Assuming that City-County false, ed Beulah the Councilmember inference drawn is Dworkin still Coughenour Stop activist in the must establish that it was drawn with actu —an ERA movement-to-introduce law point lo- al malice. Dworkin to fails to evi cally. dence of malice other than her statement may that malice be inferred from the

Coughenor’s char smart first move was to acter and content of publication alone. hire MacKinnon as but Dworkin this, Particularly in a case as such where city in developing consultant to the * * * * * * Hustler reached an inference or interpreta legislation. MacKinnon is * * * material, tion reputable from source mere “respectable.” Of the co- law’s malice authors, inference of is insufficient. Plain she most to likely be ac- interpretation tiff must show that the made cepted by Indianapolis’s city conservative maliciously. was reached Malice must be style officials. Dworkin’s would not proved, “punishment because of error runs gone Indianapolis have over in —there inducing risk a cautious and restric anti-porn are no crowds of feminists to tive exercise of the constitutionally guaran action, galvanize into while there are in- * * * speech press. teed freedoms of tight-laced numerable to conservatives requires pro First Amendment that we pitch alarmed feverish Dwor- tect some falsehood in order protect revival-style speeches, kin’s not to men- speech that matters.” Gertz v. Robert tion her unruly appearance. overalls and Welch,Inc., 323, 340-41, provided Hustler also a New Times York 2997, 3007, 41 L.Ed.2d 805-06 article Indianapolis about the ordinance en- titled, A Feminist Ex- Against We turn next to Hustler’s accusa Offensive ploitation. Included the article was the that in bestiality, tion Dworkin advocates following Indianapolis, “In statement: and sex again, cest with children. Here many proponents where Hustler provided ordinance’s source material its Week, Park, writing appeared rally 14. number Volume for Lesbian Pride Central * * * entitled, Wave, the Second and is "What is sponsored by June Fe- Lesbian writing, Lesbian Pride.” end At the minist Liberation.” reader is it informed that was delivered "at the scruti- tions the book or work under writings. own from from Dworkin’s statement the trial court is thus provided ny. predisposed with The reader Hustler entitled, Androgyny, chapter Androgyny: opinion. view the critic writes as what Community, from Fucking and Dworkin’s context, rightly courts been have book, chapter, In this Hating. Woman wary finding defama- statements to be society in a model which describes Dworkin tory, misquote the statements unless sexuality” transforms human “redefine[d] author, author’s put words into the relationships and the institutions “human go beyond clearly mouth or otherwise relationship.” seek to control which interpretation. realm community, androgynous states that She Smolla, also, Ollman, F.2d at 988. See relationships and other-animal “human supra, 6.12[7]. explicitly erotic.” She become more would dealing inter- taboo” We believe that when incest advocates “destruction “cooperative work, develop pretation literary human must be in order of a community of natu- guard based on free-flow especially careful to the critic’s Finally, she androgynous eroticism.” ral express meaning of opinion his about the “every right to have states children Any places author who a book work. impulses” their erotic and that live out own marketplace of ideas makes his work children and the distinctions between itself subject to criticism. Dworkin’s book androgynous disappear would adults reinterprets per- fairy tales from a feminist community develops. spective. say interpreta- is to Who tion is “true” and which “false”? merely her argues that book Dworkin rather advo- practices discusses these than Furthermore, Supreme the United States them. not the is- cates This does resolve interpre- Court has allowed latitude for the correct, claim Assuming that her is sue. ambiguous tation documents where a not mentioned in the since the book itself is Time, made. claim of libel is Inc. article, question of fact to be Hustler Pape, 91 S.Ct. 28 L.Ed.2d truly her ad- is book resolved not whether rejected concept (1971), the Court Hus- practices, these but whether vocates interpretation ambigu- a an faulty that interpretation of Dworkin’s work tler’s give a claim for ous document could rise to advocacy description rather than is “false” Magazine Pape, Time had errone- libel. In Again, and was made with malice. Dwor- ously reported that the United States Com- interpreta- kin has failed to show that Rights mission Civil had accused the maliciously. tion was reached official, plaintiff, public police brutali- a subject interpretation of a critic’s On ty. misinterpreted a re- Time Commission writings, another’s it has been said: port to that the had made say Commission [CJommentary writing on another’s was accusation; fact, the Commission privileged occasion com- considered a allegations only reporting made was received mon law and therefore the bene- Supreme others. The Court stated that fit of the fair doctrine. When a comment “alleged” Time’s of the omission word book, commenting critic is about describing police the incident of bru- is is en- reader on notice that critic tality adoption to the of one of “amounted inherently gaging interpretation, an possible interpreta- a number of rational subjective enterprise, and therefore real- tions of a document that bristled with author, others, including izes ambiguities. The of such deliberate choice in- may utterly disagree the critic’s although arguably re- interpretation, an average terpretation. The reader fur- flecting misconception, enough not was that because of limita- ther understands issue of ‘malice’under New create a limi- space, not to mention those tions Pape, York Times.” U.S. at imposed patience by the tations L.Ed.2d S.Ct. at at 53. audience, prac- prospective the critic as a Supreme recent- States Court support his United tical matter be able will ly concerning Pape fair quota- stated opinion only by rather truncated “[a] reading opinion of our is sin Supreme that the defendant Court affirmed the trial publish not did falsification sufficient to plaintiffs’ court’s dismissal libel com- finding sustain a of actual malice.” Mas plaint alleged the defendant’s use of — Magazine, son v. New Yorker the term “nuisance suit” to describe the —, —, 2419, 2434, 115 plaintiffs’ taxpayers’ against city suit 447, — (1991). L.Ed.2d The same is true defamatory. Agreeing with the trial interpretation in this case. Hustler’s court that the term expression is an simply work does not Dworkin’s create opinion suit, of the writer about the name- of malice for jury. issue ly, merit, that he did not great think it had said,

Finally, we arrive at a statement classify. which is difficult to It has ele import any defamatory meaning to [t]o hyperbole, depend ments of either fact or these words would result in a strained ing on how it was used. Hustler accused and unnatural give construction and ef- against filing Dworkin of a “nuisance suit” fect to innuendoes appar- that are neither any Hustler. We have not located authori directly ent from the language nor arise suit,” tative definition of a “nuisance but implication. clear Nothing this lan- appears the most narrow sense it to refer guage reasonably could be construed as plaintiff to a suit which the knows harming reputation plaintiffs, well-founded in the but which is lowering them the estimation of the brought the defendant browbeat into community, deterring persons third paying damages nominal rather than incur from associating dealing with them. ring legal fees and costs. A “nuisance Waldo, 172 N.W.2d at 684. suit” may meaning, also have a rhetorical sense, however. In a rhetorical a “nui sense, In the broader there was some may sance suit” be one which the defen justification for Hustler to believe that it dant finds annoying inconvenient or prevail would Hustler, Dworkin v. fight and which he feels confident that the suit awas “nuisance.” The Ninth plaintiff litigant will lose. When a without Appeals Circuit Federal Court of said the legal training refers to brought a suit following opinion: in its against suit,” him as a “nuisance is diffi it Attorneys requested have [for Hustler] cult to know whether he means that the attorneys’ double costs and pursu- fees narrow, suit is a nuisance in the technical ant to Appellate Federal Rule of Proce- broader, sense or rhetorical In sense. dure 38 and 28 U.S.C. 1912. We have § sense, calling the rhetorical a suit a “nui attorney’s “discretion to award fees and expressing sance” should be viewed as against costs a sanction a frivolous opinion proved by objec which cannot be appeal. An appeal is frivolous if the tive means. Even if a court rules obvious, arguments result is or the plaintiff, may change the defen wholly error are without merit.” DeWitt opinion dant’s that the suit was frivolous. Co., 1448, v. Western Pac. R.R. 719 F.2d protects expression First Amendment (9th Cir.1983). 1451 opinion. of this sort of Dworkin had request We denied a similar made establishing burden of that “nuisance suit” L.F.P., Inc., Hustler in Leidholdt v. 860 narrow, was meant in the technical sense. 890, Consequently, F.2d 895-96. sanc- pointed has nothing She could inappropriate tions ap- would be this satisfy requirement. See Camer v. peal, which was filed under circum- Intelligencer, Wash.App. Seattle Post 45 29, 1195, substantially stances (1986), similar to those of 723 P.2d 1200-02 cert. denied, However, 916, 3189, arguments Leidholdt. 96 (court made in this case rejected L.Ed.2d 677 held that a have now been media defen Leidholdt, Ault, attributing plain dant’s nuisance this court and in suits to a libel). tiff did litigants not constitute actionable case. Should raise simi- See Co., 203, cases, subsequent also v. Waldo Journal Wis.2d lar contentions in (1969). There, 172 N.W.2d hearing the Wiscon- courts may those cases consid- er in the instance whether sanc- pub- criminal sanctions where discussion of first appropriate. Garrison, tions are lic affairs is concerned.” S.Ct. at 13 L.Ed.2d at Hustler, Dworkin 867 F.2d at 1200-01 133. added). (emphasis Supreme summary, applied appro- adopted In Illinois we have Milkovich to the statements Garrison analysis priate approach in a civil action in libel Co., to Dworkin. We hold Farnsworth v. pertaining of and Tribune Ill.2d considered indi- that neither the statements (1969). There, 253 N.E.2d vidually nor the article considered as a “good court held that the motives and for un- whole constitute actionable defamation justifiable language ends” its free controlling der First Amendment law. speech/libel provision constitutional “incompatible with United States Su justifiable motives and ends. Good 4. preme interpretation scope Court’s point There remains one further asserted guarantees of the first amendment by Dworkin which choose to address. we also, People Federal Constitution.” See language She claims that under the “the Heinrich, 104 Ill.2d 83 Ill.Dec. truth, published good intent and with 550-555, 966, 970-71, 470 N.E.2d ends, justifiable shall be sufficient [for] defense,” (1984). A.L.R.4th 1003 Const, Wyo. as found art. years Pennsylvania A few later the Su- 20, these media defendants bear the bur- Court, action, preme in a criminal libel re- statements, proving den of that the even if lied on New York Times Garrison constitutionally protected, “true” or were provision hold Pennsylvania a similar published good justifi- with motives and for repugnant Constitution to the First Amend- Again regrettably, pursues able ends. she ment of the United States Constitution. this assertion the same manner as she Armao, Commonwealth v. 446 Pa. pursued her other contention that the sub- 286 A.2d ject provision precluded sum- mary judgment in a libel action. Her as- recognized As in our state constit analysis, legal sertion lacks constitutional ution,15 the United States Constitution is authority, cogent argument. supreme hold, law of the land. We therefore, phrase published that the “when studied New York carefully We have good justifiable intent and ends” Times, Butts, [for] subsequent and the United Const, 1, 20, Wyo. repugnant States Court cases that have con- guarantees of the First Amendment of sistently adhered to that doctrine since United States Constitution libel ac particular, first announced in tions in which the New find Garrison most York Times/Butts informative case, point applies public figures Dworkin raises. In that standard who have New York applied its Times rule and criticized been media defendant re struck down a Louisiana criminal libel stat- garding public matters of concern. Conse which, language ute like the of this state’s quently, the media defendants in this case speech/libel provision, free do not bear the burden Dworkin would conditioned defense of truth on the have them assume. presence good justifiable of motives and grant- We affirm the trial court’s order challenged ends. Where the statements ing summary judgment against all of the public public figures criticize officials or plaintiffs on all of the counts the com- concern, public of matters “the interest plaint. private reputation larg- is overborne interest, public er secured the Constitu- APPENDIX A tion, in the of dissemination the truth.” Interpretation of State Constitutions Garrison, 379 at 85 S.Ct. at 13 Hession, Comment, Rediscovering Consequently, L.Ed.2d at 132. Judith “[t]ruth of either civil or State Constitutions may subject not be the Rights Individual Burk, Wyo.Const. (Wyo.1973). § 37 and art. 24. See also Doe v. 513 P.2d 643

921 The Rights Jr., Bill of Brennan, William J. and the States: The Revival State Con- of Civil, Baylor 37 L.Rev. 463 Protection — stitutions As Guardians Individual of (1985) Rights, (1986) 61 N.Y.U.L.Rev. 535 Georgia The Bill of Dorothy Beasley, T. Sources the 1889 North Vogel, Robert of Rights: Dead or Alive? 34 Emory L.J. Constitution, Dakota 65 N.D.L.Rev. 331 (1985) 341 (1989) Interpretation The State Constitution- of The Constitution What Leahy, James E. Rights, al (1982) 95 1324-1502 Harv.L.Rev. is, Judges Say It 65 N.D.L.Rev. 491 Prophet Maltz, False Earl M. —Justice (1989) Theory Brennan and the State Consti- of A Second Look at Consti- Willner, Don S. Law, Hastings tutional L.Q. 15 Const. 429 Interpretation tutional in a Pioneer and (1988) Populist State, (1988) 67 Or.L.Rev. 93 In Praise State Skelly Wright, J. of Ken Gormley, State Constitutions Judge, Courts: Federal Confessions Criminal A Procedure: Primer L.Q. (1984) 11 Hastings 165 Const. 21st Century, 67 Or.L.Rev. 689 (1988) Reliance on State Collins, Ronald K.L. State Constitutions as Pollock, Stewart G. Away From a Reaction- Constitutions — Separate Sources Fundamental ary Approach, 9 Hastings L.Q. Const. 1 Rights, (1983) 35 Rutgers L.Rev. (1981) Freedom Expres- Miller, Note, Peter P. George Deukmejian Clifford K. Thomp- & Constitutions, sion Under State 20 Stan. son, Jr., All No Sail and Anchor—Judi- (1968) L.Rev. 318 cial Review Under the Consti- California tution, Hastings L.Q. Const. Judicial Treatment of Wilkins, Herbert P. the Massachusetts Declaration Rights Newman, Note, Rediscover- Lawrence M. in Relation Cognate Provisions ing Rights, Declaration California Constitution, United States 14 Suffolk (1974) Hastings L.J. 481 (1980) U.L.Rev. 887 Pitler, Robert F. Utter Sanford E. & Emergence State Constitutional Speech, Presenting a Constitutional State Law, (1985) 63 Tex.L.Rev. 959 Argument: on Theory Comment Technique, 20 Ind.L.Rev. 635 (1987) First Things First: Linde, Justice Hans A. Rediscovering the Bill Rights, States’ Interpreting McAllister, Comment, Steve (1980) U.Balt.L.Rev. 379 A Survey State Constitution: Methodology, Assessment Current Right Utter, Justice Robert F. (1987) Kan.L.Rev. 593 Write, Speak, Freely: and Publish State Against Constitutional Protection Pri- Essay Wyoming An Keiter, Robert B. Abridgment, vate U.Puget Interpretation, Constitutional Sound L.Rev. Land & (1985) (1986) Water L.Rev. 526 Utter, Freedom and Di- The Prima- Justice Robert F. Comment, Goodnough, Glen S. versity System: Perspectives in a Federal cy Method State Constitutional Deci- of on State and Washing- Constitutions sionmaking: Interpreting the Maine Con- stitution, Rights, ton Declaration Puget 7 U. (1986) 38 Me.L.Rev. 491 of (1984) Sound L.Rev. 491 Construction the Wis- Sunquist, John of Constitutions, consin Constitution —Recurrence to Fun- Paulsen, State Monrad G. State Principles, damental Courts and First Amendment Free- Marq.L.Rev. 62 531 doms, (1951) (1979) 4 620 Vand.L.Rev. Rights”: Constitutions “Bill A Swindler, State State Force, William F. Robert of Neglect the 20th Case Century, and Need a Re- 50 Neb.L.Rev. 577

for for naissance, (1970) (1969) 125 3 Val.U.L.Rev. Sullivan, Times 376 U.S. York Co. L.Ed.2d 686 Kelman, Foreword: Rediscover- Maurice Milkovich, 497 U.S. 110 S.Ct. Bill ing the State Constitutional Supreme declined to create a Court (1981) Wayne L.Rev. 413 Rights, 27 separate, sweeping category of defamation Willner, Interpreta- Don S. Constitutional exception “opinion” as statements State, Populist in a Pioneer and tion opposed to of “fact.” The statements (1981) L.Rev. 757 Williamette “opinion” exception noted Court that an Williams, F. Constitutional Robert State unjustifiably defamatory could state shield Processes, Mary & L.Rev. 169 Wm. Law speaker if ments or writer couched his (1983) opinion. or her statement in In terms of Comment, Chida, Rediscovering H. Junaid stead, adequate protec the Court found Constitution: Presenta- the Wisconsin by existing tions secured constitutional doc Questions in tion State Constitutional protections These trine. include exclusion Courts, (1983) 1983 Wis L.Rev. 483 liability from for statements on matters of public proven concern which cannot be Matarese, B. The Role Linda Other voices: false, protection for statements which can Durham, Kaye, and Abraham- Justices reasonably interpreted stating be as Shaping the “New Feder- son in Judicial facts, plaintiff’s prov actual burden of alism,” Emerging Issues St. Const. Law ing malice where a statement on a matter (1989) public reasonably implies concern false Schuman, Advocacy David State Consti- defamatory regarding public facts offi Report A tutional Law Cases: from Milkovich, public figures. cials or 497 U.S. Provinces, Emerging Issues St. Const. at -, 110 S.Ct. at 2706-07. It is in the (1989) Law light protected of these three areas that I CARDINE, Justice, specially concurring. suggest that there should some rethink ing apparent opinion immunity absolute I concur in the of the court be- granted pub from suit for defamation to cause of clear United States who, Nevertheless, precedent. profit, regularly I am lishers and ran less domly public figures. enthusiastic over a state of attack than law which law of publisher money-mak- to create a defamation in our juris allows sister common-law cruel, obscene, diction, Canada, ing provides guidance business out of random in strik upon public I figures. ing attacks Nor am able a better balance between the to publications by equating justify these reputation speech and freedom of and of writing Shakespeare them to press. firmly I believe that freedom of They hardly are class. Chaucer. speech press nicely can survive protection without the now afforded the agree I could reversal of Nevertheless, Magazine. likes of Hustler judgment Spence Flynt, 816 P.2d 771 I specially must for the reasons stated con 1991), (Wyo. Spence subjected because cur. bizarre, cruel, only to a most obscene libel he, attorney, repre undertook because URBIGKIT, Justice, dissenting. Sadly, sentation of a client. Dworkin is sloganistic In this world of wordsman- posture. My sympathies not in the same ship phrase making, it becomes easier dissenting justices, are with the but estab agonizing than about the hard effort of requires my concurrence. lished law See Co., thinking relegate making decision v. Lorain 497 U.S. Milkovich Journal (1990); spontaneous reactivity opinion-deter- 111 L.Ed.2d 1 110 S.Ct. Falwell, mining Spender, do-gooder, Magazine v. words. ultra- Hustler (1988); conservative, crime, control, gun 99 L.Ed.2d 41 soft on Gertz Welch, Inc., abortion, censorship examples. serve as v. Robert U.S. case, (1974); In 41 L.Ed.2d 789 this the umbrella the First S.Ct. Curtis Butts, 130, 87 Amendment casts a shadow which tends to Publishing Co. v. (1967); deeply important exclude issues. These in- 18 L.Ed.2d 1094 New S.Ct. making. attorney litigation, summary judgment decision defeat and now it elude application directly of a derived by an comes this case as an effort to It is followed concept by to diminish effi- multiplying directed federal defeat the muckraker or right to cacy of our state constitutional quantity of muck. pro- individual to be integrity of whole First, look let’s at the text of two through a jury trial review tected provisions. This is done to damage claim. why majority required assess feels agree in I do There is much with which superimpose a federal veto on the Allied- opin- scholarly complete majority Signal, Bd. Wyoming Inc. v. State I like- ion. There was much about which (Wyo.1991) Equalization, 813 P.2d agreed in the effort of Justice Thomas wise application Wyoming clear intent of the majority opinion before this case to write then Constitution in this case. We would I also reassigned and with which deny litigant jury access to a trial for disposition

joined concept to favor within good review of unabused truth and intent Wyoming Constitution. justifiable ends as defenses. critically subject I leave the to be will Const, Wyo. art. 20 states: § considered Justice Thomas his dissent libel; speech press; Freedom of anticipations and regarding the broad base truth a defense. concepts of the Constitutional Wyo. its members wrote Convention when Const, Every person may freely speak, write generally 20. I limit art. will § publish being respon- subjects, on all immediately pressing dissent to the right; for the of that sible abuse question regarding inappropriateness of de- libel, criminal, all trials for both civil and ciding by summary judgment Wyo- that the truth, good in- published I ming is invalid. also do not Constitution ends, justifiable tent and shall be a [for] accept the that the First Amendment view defense, jury having sufficient deter- to the United States Constitution right to determine the facts and the Const, provisions Wyo. mines that the under direction of the court. ignored. abrogated 20 should or art. Const, U.S. amend. I states: making I decision for the libel case reject Congress respecting make no law shall through summary judgment rather than religion, prohibit- or an establishment exposure guaranteed by the ex- jury trial thereof; abridg- ing the free exercise plicit terms of our constitution. speech, ing the freedom of or of the determine here is that The real issue we press, people peace- or the Const, Wyo. 20 is involved and assemble, ably petition and to the Gov- not, ignored as the cannot be whether or grievances. ernment for a redress of determines, it is in es majority essentially wise, deeply wade Amend It would be before we sence invalidated Fourteenth provided litigative morass incorporation of the First Amendment into the ment pursuits publications, of the Hustler to re We do to the United States Constitution. clearly specificity call and with what sum considering publica a scurrilous that when definition, which, mary judgment is all about. It should be by any panders a tion apparent product that if the with which we prurient of character assassination. course stop acceptable impor concerned is so injunctive action to are This is not tant, purveyor no then the should have exposure product— to the the world damage objection jury to a review and discernment. good, This is a bad or indifferent. a serious effort in responsibili This court made Cordo case to assess defamation tort Gosar, (Wyo.1986), as v. 719 P.2d 625 ty by exposure purveyor to a va by Davenport Epperly, Spence followed review and verdict decision. (Wyo.1987), properly under de P.2d 1110 (Wyo.1991), P.2d 771 cert. Flynt, 816 — —, applications of 118 stand the diverse nied procedural deterrent to the (1992), judgment as a the cause was to attack L.Ed.2d 388 In litigant’s jury prior to a trial.1 dard for state Cordova court and federal law. Davenport, summary judgment acceptance This effort and has met with (1) among judiciary recognized stage legal particularly a six review: state (2) Wyoming. not in sufficiency complaint; procedural This court has not been willing accept supposition sufficiency of the motion for of federal judgment depo upon cases to base “trial” affidavits attached affidavits and material; (3) pieces sufficiency deposition bits and material rath sition substantive integrity er than initially support of an actual trial with affidavits and, motion; (4) perforce, live procedural sufficiency jury of re witnesses even a affidavits; (5) sponsive legal decision. substantive (factual disposition not rele issue issues text, simplest looking if we are at the

vant); (6) disposition if there are no component summary judgment involving (material material issues of fact factual fact, existence of a material issue of exist). Cordova, issues do not 719 P.2d at principle is stated: 635-36. summary judgment The motion for Consequently, adequately when an devel- should be sustained the absence of a oped summary judgment litigative attack is real considering and material fact issue unleashed, process the decisional addresses burden, respondent’s right movant’s granting a contended basis for the relief the benefit of all favorable inferences (a) dispositive either of two decisions: doubt, any reasonable with credibili- regard rule of law which controls ty questions without to be resolved trial. fact; conflicting (b) for schemes of ab- Cordova, 719 P.2d at 640. sence of material fact to issues of be deter- text, In broader alternatively have depositions mined from the affidavits and stated:

as admissible if a trial evidence were to be “ * * * ‘Summary judgment should not held. granted be contradictory where inferenc- then, Summary judgment if properly de may es undisputed drawn from evi- * * * veloped, presents case, either a law Dean dentiary facts.’ ‘Even where the Sons, Knight W. & Inc. v. ex rel. State bearing upon facts the issue negli- * * 300, Dept. Transp., Cal.App.3d gence *, undisputed, are if reason- Cal.Rptr. (1984), or a no factual conflict able minds could reach different conclu- case, Davenport, 744 1110. It is P.2d now sions facts, and inferences from such apparent system, the federal court issue must be submitted to the trier of * * * ‘ through cases, Corp. the Triad Celotex fact.’ judgment “Evaluative be- Catrett, 2548, 477 U.S. 106 S.Ct. rationally possible tween two conclusions (1986); L.Ed.2d 265 Liberty Anderson v. from facts engaged cannot be in on sum- ’ * * * Inc., Lobby, 106 S.Ct. mary judgment.” ‘Summary (1986); 91 L.Ed.2d 202 and Matsushita judgment appropriate is not where the Co., Elec. Indus. record, Ltd. Zenith Radio including plead- documents and Corp., 475 U.S. 106 S.Ct. ings, give establishes facts which rise to (1986), L.Ed.2d 538 inferences, cert. denied contradictory one of which (1987), supports 95 L.Ed.2d 527 party opposing the motion.’ * **>>** * has beyond moved the conventional stan recognize major 1. A rank amateur would that a tiveness of the recommendation is that sum- war, mary judgment which will granted be determinative of the Ameri- should be and that rea- justice delivery system, being waged can civil required reject. Avoiding jury son is consid- summary judgment. around clearly apparent The idiom of this eration at all costs is from this and, anything time is major to avoid trial even more source and other movers who seek to so, See, example, trial. judicial system. the Presi- reconstruct the American See Competitiveness, Agenda Recommendations, dent’s Finding p. Council for Table of Reform, require Agenda Civil Justice which would for Civil Justice Reform. See also Cler- finding Eisenberg, trial court to (based by Jury Judge: make an exclusive of fact mont & Trial Tran- whatnot) scending Empiricism, affidavits and sum- 77 Cornell L.Rev. 1178 before mary judgment presump- could be denied. The “ * * * summary judg- viewpoint most favorable to re- The motion for spondent giving to him remedy and one which all favor- ment is a drastic able inferences to be drawn from the pierce allega- formal designed is to affidavits, facts contained exhib- the merits of the contro- tions and reach its, depositions. only when no material issue versy—but * * * Although present. (c) tested, both credibility of fact is When is to be obligated to come forward parties testify are trial. witnesses should evidence, the burden is on the with their (d) do not concede the Cross-motions party clearly demonstrate moving to of factual issues. absence genuine no issue of material that there is (e) then, Finally, to determine whether done, if is the motion fact and not dispute the evidence is in or factual summary judgment should denied. be conflicting subject interpretation to or the record from the This court looks at differing significance respon- with viewpoint party to the most favorable dent afforded the benefit of reasonable motion, him opposing giving all doubt. inferences to be drawn from favorable Cordova, (emphasis 719 P.2d at 639-40 affidavits, the facts contained in the ex- original). * * * hibits, depositions. challenge presented then is to deter- *“ * * subject If the evidence is to con- mine, decision, majority’s as a result flicting interpretations reasonable supersession Wyoming whether con- might significance, minds differ as to its provision regarding stitutional judgment improper[.]” is Const, explicitly Wyo. trial stated in v. Blue Cross-Blue Weaver Shield of 1, 20 art. is a determination a matter Wyo., Wyoming, 609 P.2d 986-987 regard of law without for conflicts of fact or whether we have the character of sum- Precedentially significant are the credi- mary judgment by determined the conclu- princi- bility and the reasonable-inference sion that there is no material issue of fact * * * ples. presented. ciples We would ^[******] advanced synthesize some Wyoming general prin- cases Wyoming invalidation of Although Constitution, I do solemn enthusiastically accept whether provisions by sum- general many standards of well-rea- otherwise, mary judgment or it becomes soned cases from the federal courts and acceptable finding if a fact exer- even less other states: adjunct cise is utilized as an of the sum- mary judgment disposition. recognizing

(a) summary judgment The motion for essence what we label here as sum- is remedy is a drastic and one which mary judgment actuality finding is in a fact designed pierce allega- the formal review, appellate respectfully I exercise of the con- tions and reach the merits urgently dissent from this decision. troversy only no material —but Alternatively, I think if would that we start Although issue of fact is present. pathway, highly preferable down this it is for- parties obligated are to come

both Const, Wyo. to declare this court evidence, is ward with their the burden This court can 20 void and ineffective. moving party to demonstrate on the protection to then start over with the sole mate- genuine that there is no issue of provided jurisdiction for freedom rial fact. speech liability for libel and defama- (b) The court should scrutinize periodic to come from the incursion tion indulge care movant’s affidavits and by the United States into constitutional law leniency respondent’s affidavits but Supreme Court. permit overtrading on the indul- not to overwhelming issue for this ac- gence since there must be libel of the court whether, appeal tion as a matter of genuine issue of a material fact to be Magazine’s “comments” cannot be looking from Hustler tried after at the record right,” actionable under the her own “one of the found to be most foul- mouthed, Earth,” as limited to the extent it abrasive manhaters on Constitution “repulsive presence,” cry-baby deci- “a who would be the First Amendment clearly can dish out criticism but can’t States Court. sions United it,” “Spence’s foaming-at-the-mouth take summary judg- in a The use this case of client,” and “a censor.” proceeding ment to invalidate requirements guarantees Constitution Having Id. at 914-915. exercised this fac- is, unnecessary inappro- my opinion, conceptual interpretation, tual review priate. majority prevailing then answers: “Under constitutional First Amendment safe- The first decisional examination made guards, language cannot, that as a matter alleged majority was whether an de law, of form the basis for a defamation famatory “purports statement to state ” claim.” at 915. Id. an individual.’ imply ‘actual facts about Next examined is: op. (quoting meaning “The Maj. at 914 Milkovich v. Lo Co., legal applica- statement in context.” This rain Journal tion of a factual review 2695, 2706-07, (1990)). is considered when 111 L.Ed.2d 1 I find majority factually applies: inquiry that and the coordinate concerns of be, majority opinion totality, editorials, factu reviews, Certain formats — and, consequently, cartoons, al political determinations not monthly sig features — subject average expect to resolution under the established nal the depar reader to a summary judgment. actually rules of this court for ture from is what known Cordova, explained 719 P.2d 625. It should be clear writer as fact. As in another case, ly understood that the issue of case perus this is reasonable reader who “[t]he Op-Ed not whether the statements are determina- es column the editorial or [a] tively page fully actionable as a matter of but is aware that the statements whether the statements cannot action found there are not ‘hard’ news like any consequently jus printed page able in circumstance those on the front or else newspaper.” tifying summary judgment disposition. where in the news sections of the Unfortunately, opinion applies Evans, this court’s man 750 F.2d Oll 986 (D.C.Cir.1984), summary judgment the matter of law reso cert. denied 471 U.S. comprehensive lution a factual issue 86 L.Ed.2d 278 * * * Combining evaluation. the two alterna grant summary judgment tives for a appears The Hustler article under the only logically totally results invalid heading regu- “Bits and Pieces” and is a majority conclusion. The first outlines the monthly lar feature. The tone of the scope expected factual issues: pointed, exaggerated article is and heavi- type court must scrutinize ly invoking laden with emotional rhetoric [A] used, language meaning principles. state- first amendment We are con- context, ment in whether the statement average fully vinced that the reader is verifiable, and the broader social cir- aware the statements found there cumstances which the statement was are not “hard news.” Readers of that magazine expect made. that Hustler’s writers strong opinionated will make statements Maj. op. majority at 914. The then follows column, recognized in that home of analysis: with a detailed factual opinion proposition and comment. That type language used. very regu- is inherent notion of a language may signal The kind of used larly appearing page “Bits and Pieces” purporting readers that a writer is not page. which is akin to an editorial actual, imply state or known facts. * * * Maj. op. at 915. Clearly falling category into this characterizing totally analy- are Hustler’s statements From this directed factual “ review, guy’ appellate topic, Dworkin as: ‘little militant lesbian sis the next feminist,” statements,” “shit-squeezing sphincter in “Verifiability reaches find- uttered them with fact but also Hustler appellate adjudicatory further for knowledge in reckless falsity ing. Id. at disregard for the truth. concepts Continuing apply the broad Id. at 916-917. my ob- summary judgment adjudication, end here is done does not states, to what jection defines majority then beyond expands factually search since the my this keynote attack on topic of “The record within the printed seen, judgment decision: “As shall be in which social circumstances broader Dworkin has satisfied her burden at 916. Id. made.” the statement summary judgment setting.” Id. importance is stated: “The added). The context missing is (emphasis Overtly by the recognized has been context social initially emplaced of the movant burden Court,” then and United States proper as disposition to either show that is conclusion factual to determine or factual a matter of law that no material is stated: proper sequentially is dismissal applica- issues exist. The in first burden Wyoming summary judgment con- antipornography is activist tion of an Dworkin respon- public cepts properly does not fall on a are in the form of whose activities dent. advocacy political and direct involvement. drafting of the participated She misapplication makes The of the burden antipornography ordinance Indianapolis through point could continued a which be unconsti- enacted and then held that was opinion. The majority the balance * * * Hustler’s Bits and tutional. initially summary judgment had not been is an attack article ad hominem Pieces approved the trial granted by court now social, moral of a against advocate except as a of law by this tribunal matter viewpoint contrary to Hus- political and analysis reference and to judicial after were question The statements in tler’s. comprehensive con- compelling and factual ongoing de- uttered in the context of an Cordova, stage six, This is a flicts. destroy Dworkin seeks to bate which 636, summary con- judgment where P.2d at industry part. is a of which Hustler analyzed to then flicting actually facts are destroy response, Hustler seeks to by a inference determined favorable be its ad- viewpoint by vilifying Dworkin’s implication genuine upon the that no based spirited In such a and heated vocate. I conclu- present. cannot find that issue is confrontation, of which the statements recitation properly follow from this sion to exaggerated part, epithets, are a abusive En- by adaptation the wildest even ex- hysterical hyperbole and are rhetoric granting The language. criteria for glish pected. comprehensively and summary judgment

Id. this cannot clearly court and defined examined profuse- Four statements are then satisfied this any means be within appear likely objectively demonstrated, more conflicting ap- “which be factually ly proof disproof.” Id. capable of record. pellate majority then tells us: jury-

The my that the leads to conclusion This finding function detailed statements are: Dworkin is a directed fact The four “lesbian”; contemplat- has turned Indianapolis Wyoming Constitution been in this Summary judgment antiporn upside co-authored down. ed an ordinance away trial for the her, “stay becomes a mechanism supporters asked her to case appellate court judge kill trial and repulsive presence her would fact finder for fear lawmaker, jury re- judge in- it”; bestiality, to become “advocates Dworkin children”; free- garding subjects Dwor- the solemn both with and sex cest ad- damage for libel against speech a suit” dom kin initiated “nuisance Const, If the Wyo. dressed We these statements Hustler. consider evidentiary status was that well-deter- legal light of Dworkin’s burden self-evident, seem cer- convincing clarity it would prove mined having to with statements, properly can decide. falsity tain that the only the not constitutionally jury, prop- Obviously, appellate constituted cast. court instruction, reliably expected opted er should be programs case favor call-in over justice to answer the demands of without possible derogatory by anony- comments preemption by summary judgment deci- a participants. mous That situation cannot only escape sion. The from this inevitable accurately related to the events this certainty judiciary is for the avoid incur- publication thoughtfully pre- deliberate finding into sion fact and to leave decision pared for considerable detail making legal concepts. majority finding present adjudica- fact exercise of here decides under no circumstances is employed. tion or character of can libel events actionable Similarly, Spriggs Cheyenne Newspa by writings be established at issue in this (1947) pers, Wyo. P.2d true, litigation. just If is not turn this provides summary judgment justifica no judiciary the fact finder for it to into persuasion tion or since the case was deter conclusionary into slide reference by jury Spriggs, mined verdict. John J. making comparison instrumentality all significant participant litigation, was an finding final fact defamation anathema to the of Wyoming members accept procedur- I do to be cases. Court, Supreme but at least the decision constitutionally ally correct or valid. making, finding process fact was retained Stripped complexities sig- of its and the Blount, examination. Williams v. analysis, nificant academic direction of this (Wyo.1987) Oil, 741 P.2d 595 and Chemical majority opinion simply validity tests the and Atomic Workers Intern. Union v. consequent constitutionality and the under Corp., (Wyo.1987), Sinclair Oil 748 P.2d 283 United States of a firm Constitution rt. denied ce provision adopted by certain the founders (1988) L.Ed.2d did not raise the of this state at the constitutional conven- question constitutional and likewise cannot lightly tion in 1889. I do not so abandon provide authority summary judgment Wyoming to Constitution Wyo. inversion Const. art. 20. § judgment adjudicative disposition. I find This Harriscope leaves MacGuire v. retaining liability value civil defenses Co., 612 Broadcasting (Wyo.1980) which are P.2d 830 constitutionally stated for this jurisdiction truth, MacGuire, for discussion. published that “the the issue when good justifiable ends, intent was existence of shall sufficient indicia of [for] * * Wyo. be a sufficient defense malice to summary judgment. defeat Con- Const, art. 20. versely, present case, for this the actual existence of malice hardly ques- could be cases, To first Wyoming review the I tioned. not We do have here a contested would not Tschirgi Wyo- find v. Lander case, where, malice we have a case despite Journal, ming State 706 P.2d malice, we are asked to determine whether (Wyo.1985) faintly comparable to be where rights First Amendment interpreted by presented essentially the issue there was the United supple- States appellant whether to the “wrestled ment the speech dual interests of free ground.” appellant Since the was essen- responsibility for misuse constructed into tially ground,” “wrestled to no factual Wyoming provision, Wyo. constitutional presented. issue was Id. at 1117. That Const, Furthermore, 20. I would compared status cannot be this case. join with Rooney special I Justice in his Nor do find the call-in con- radio broadcast justi- currence portrayed in MacGuire to follow Adams v. Frontier his Broad- Co., understanding fied casting (Wyo.1976) of the basic 555 P.2d 556 be nature of summary judgment relevant and the authority. Recognizing disingenuous if political case result relating casually itself was a decision certain cases are excluded alleged political figure, specifically an from its validity criteria established the statement of anonymous Rooney caller was limitations. Justice said: “If there first, and, second, unexpected knowing- ‘genuine any fact,’ is a issue as to material ly by untrue the radio station broad- a trial be should had to resolve it. of the Unit- required prove his constraints the Constitution ought not plaintiff be stage. He summary judgment opinion ed I find that neither nec- States. case at an issue of only position that there is I essary appropriate. need establish nor take this MacGuire, 612 P.2d at 841. recog- fact.” legal material without embarrassment while Furthermore, accurately added for de- he nizing requirements by established that the malice: termination of interpretation of the First Amendment to grant- from the reviewing appeal an “In the United States Constitution are control- summary judgment and deter- ing of a by ling upon the state court virtue genuine of a issue mining the existence incorporation doctrine application facts, inquire court must material through by the Fourteenth enforcement to the viewpoint most favorable from the Stromberg California, Amendment. motion, Timmons v. party opposing the 75 L.Ed. 1117 (1977). Reed, Wyo., P.2d Facts supported by party such asserted presented interpretative re- We are evidentiary material affidavits or other sponsibility clearly the dif- which embraces true, Trautwein v. taken as must be concepts addressed this ferentiated (1970), P.2d 776 Wyo., 472 Leavey, Inc., Allied-Signal, court in 813 P.2d inference, every given favorable any- specific language If clear and means fairly reasonably and may be thing, provi- them, Bluejacket Carney, from drawn sion cannot be reconciled with the decision (1976).” Wyo., 550 P.2d 494 Conversely, if I this court now makes. J., MacGuire, Rooney, P.2d at pathway pres- now taken follow complete for concurring. To be specially utilizing per- a historical majority ent political analysis, law the Wyoming case applied princi- spective, I likewise find the Foe, P.2d case of v. 443 870 handbill Phifer ples to fallacious.2 be campaign disputes (Wyo.1968), involving officials, hardly be public perception gained through can I a a between follow the dif- applicable initiating here where the his- found to be close examination both predominated language malice issue tory specific Wyo- ferentiated the of the provision. adapta- the decision made. Its ming constitutional need take us no further tion and utilization Rooney disinclina- I a share with Justice provides to determine that defamation than exception in defa- general a tion to create summary judgment for iden- application summary for the utilization of mation cases easily provided not more than tical to and MacGuire, 612 P.2d at 840. judgment. litigation. any other civil The exists for However, my I take that concern further should be followed. Con- same standard directly at the clear lan- analysis to look now takes a constitu- trarily, majority this I Wyoming of the Constitution. guage upends by applica- provision and it cases, tional conclude that for defamation concept a differentiated tion of summary judgment concepts only rewrite judge and leads the trial judgment which applicable Wyo- that the but also determine appellate to make the fact find- the tribunal provision regarding ming constitutional Const, required adjudicatory res- 1, ing for decisions press, Wyo. the freedom of olution. 20, constitutionally invalid under the is Interpre- Statutory history and Constitutional recognized Sources that utilization of It is Loses, provision Congress Always interpretation or a 1990 Duke of a constitutional tation: How Comment, statutory and attack (1990); Nágareda, enactment is under review Richard LJ. 160 present greater time than has to a extent at the Appellate Jurisprudence Justice Antonin The previously occurred. Sable Communica- ever Scalia, (1987). 705 John 54 U.Chi.L.Rev. Cf. F.C.C., California, v. 492 U.S. tions Inc. Stevens, Essay, Shakespeare Canon Paul 2829, 2839, (1989), 106 L.Ed.2d 93 109 S.Ct. Construction, Statutory 140 U.Pa.L.Rev. Scalia, J., Laundry concurring; Green v. Bock (1992). Zeppos, Nicholas S. See also 1381 504, 527, Co., Mach. Authority Statutory Interpretation: An Use Scalia, J., (1989), concur- 104 L.Ed.2d 557 (1992). Analysis, Empirical 70 Tex.L.Rev. 1073 Stock, Note, ring; Scalia’s Use Arthur Justice 930

Legal ancestry trace the rule is: if historians there some evidence to sustain provision case, plaintiff's weight the and suffi- ciency passed adopted style Chapter George upon by jury. of 32 is to be the 60 III, Hornsby Co., by Ry. in 1792 and v. South Carolina 26 enacted known title (1887); S.C. 594 Lingenfelter “An S.E. of “Fox’s Act”. Entitled Act to Libel Co., 116, 4 Ky.L.Rptr. Louisville N.R. & Respecting Remove the Function of Doubts (1887). S.W. Libel,” See also Eaton v. purpose Lan- Juries Cases an- caster, (1887) 79 Me. 10 A. require jury swered was to a finite decision (“If which, any there was evidence if be- proceedings. criminal The Act libel as- jury, by lieved authorize would a ver- jury sured an decision and actual limited plaintiff, dict for the a nonsuit should not prior scope process wherein the of deci- ordered.”). have been by sion jury was constrained and the real decision made the court as was firmly principles These established State, matter of law. See Oakes 98 general equally applied law were also (1910). Miss. also So. See Anno- the defamation case. State constitutional tation, (N.S.) (1911) 33 L.R.A. and An- provisions statutory enactments which notation, (N.S.) 51 L.R.A. adopted the thesis of Fox’s Libel Act are eliminate, considered not to but rather to Although originally Fox’s Libel Act ad- assure responsibility of the court to only dressed proceedings, criminal libel provide instructions on the law and to as- through early due time constitutional con- finding sure that fact was retained ventions and then clear identification in the jury. case, Perhaps the most exhaustive states, provision applied equal- Western Oakes, 79, pursued concept So. ly to proceedings. either civil criminal prior English detailed examination of That law and American constitutional Clearly recognized cases. in detail of nu- provisions which followed were intended to merous cases is the difference between li- clarify preeminence finding in fact left per bel per quod. se and libel If the state- jury’s for the consideration and verdict. ment was determined to libelous history This properly applied cannot be finding matter of fact exercise extinguish demean and diminish or the use jury appropriately diminished. If finding fact decision. Not subject per quod, was libel the determi- time, so surprisingly, until recent that un- obligation native of the court was equally Const, derstanding purview Wyo. the of of The in constrained. difference defamation 1, question 20 did not create a of a cases requirement is the additional for libel regarding status summary differentiated per require quod special damages to to be judgment the from usual civil case. Co., actionable. Boucher v. Clark Pub. 14 majority similarly The misunderstands S.D. 84 N.W. In quoting 237 the case adjoining context of law in states English case, much earlier the Mississippi regarding provisions. these constitutional recognized court in approval Oakes in cases, The burden those of which will be regard per to se: libel review, considered in later was not to es- law, question “Libel is a of and the judge tablish a differentiated for class defama- judge is the of the in libel in law as all judgment tion cases where be- cases; jury having power other the the comes appropriate. more It was rather to acting agreeably of to his statement of integration define the of the constitutional the law or not. All that the statute does provisions guarantee right to the similar to prevent question being to the from left by jury trial for in defamation. way to the jury it narrow which The underpinnings historical American was [passage left before that time of the relating nonsuit/summary judgment law George jury statute of The was III]. criteria are firmly well established and de- only then find publica- the fact relating tion, fined in to the disparate innuendoes; function and the truth of the for jury finding of the to make the fact judges used to them tell judge law, to determine issues of law. That intent inference to be

931 McManus, Evidence, 179; 143 v. Com. paper, with which from the drawn Legislature Pa. 21 Atl. Atl. nothing to do. The jury had so, 89; Syphrett, is not but that L.R.A. State v. S.C. has said that it jury.” 617; Am.St.Rep. left for the Brown v. case is be 2 S.E. whole State, 689; State, 40 Ga. Edwards Oakes, (quoting Rex v. Bur 54 So. at 81 428; U.S., Sparf v. Ga. (N.S.) 131, 1 dett, 4 B. A. How.St.Trials & 343; Cooley’s Sup.Ct. L.Ed. 1). (7th Ed.) 665; Franklin v. Const.Lim. a detailed discussion provides Oakes 236; State, State, 12 Md. Harris v. recog- understanding clearly this which Tenn. adapta- identical in nized defamation to be right to juries If have the determine actions: with other civil tion themselves, free from the law of libel for enactment of this statute was court, the control of the the result would argument largely influenced only that the law would be uncer- be in the case of Peo Alexander Hamilton tain, of the different views because Croswell, Johns.Cas. ple [3 it, might juries different take of which opinion of (N.Y.)], supra, and judgment their of the however but in the case. Kent rendered Chancellor erroneous, final; would be for right of only contended for the Hamilton nor neither the trial court this event cases to render a verdict as juries libel any right court would have to review involved, con issue and this as the broad same, grant no relief to a Kent in and could upheld by Chancellor tention was defendant, erroneously may case. he opinion by him the however rendered incorporated into our provision was convicted. The court would This have been Constitution, adopted in while any question first have no to decide rights juries controversy trial, this over the might on the law arise minds of citizen, cases was fresh libel demurrer or otherwise. Should recent conversant with the then all men under this construction Constitu- England. history country and of of this libel, tion, and the matter indicted arisen, controversy never there Had this so harmless charged to be such be never necessity have been no would lawful, powerless the court would be adoption provision. Since the con punishment, prevent his conviction and troversy rights around the centered that, judg- in its jury decide should general render a verdict libel juries to ment, charged was libelous. the matter cases, comprehensive as broad mean- judge be the would is in all other criminal such verdict statutes, and the ing of the Constitution cases, conclusion is irresistible that valid, what the statutes were whether purpose of set adoption was for the its is, privilege the law of law what common do, tling right juries the of so to and not short, questions of law which of all is—in right upon them the to deter to confer on the trial. could arise the mine the law for themselves without Oakes, at 82-83. 54 So. assistance, direction, against or the Butte Miner Harrington said in v. It is Indeed, any doubt on this the court. 451, 550, (1914) Co., 139 P. 452 48 Mont. ought by to removed the lan point be Odgers, 604 (quoting Libel and Slander itself, for it guage of the Constitution “ course, ed.)): may still (2d judge, ‘The provide jury simply not that the does law, stating any point of jury the on direct facts, the law and the shall determine fit; thereon, if he thinks opinion his own shall “under provides that it do this but must question or no libel the of libel but of the court.” v. the direction State ” jury.’ ultimately by decided the See be Atl. 19 L.R.A. Burpee, 65 Vt. 25 Annotation, (N.S.) L.R.A. at supra, 51 also 775, 790; Am.St.Rep. v. 36 Com. 185; Anthes, (Mass.) Gray Drake v. 5 repetitive, substance of these 747; the State, 2 To be 20 Atl. 53 N.J.Law judgment Greenleaf, 1070; not whether Cr.Law, cases was 3 McClain’s verdict, ever is- the granted or nonsuit could be when court not set aside will their exist, not if that, sues fact did but rather clearly unless it be can shown the appropriate issues fact did exist to reading passage, the whole there is no jury required. then the decision possible ground put for the construction early principle An text that in the states upon it by jury. the But the where following fashion: reasonably words capable any are not judgment The court direct generally will defamatory meaning, judge there the will nonsuit be for the entered defen- directing be a nonsuit. dant: Newell, Mason H. The Law Slander and (1) If there is no that the evidence 1924) (4th (quot- Libel at 802-03 ed. all, published or defendant the words at L.R., ing Kelly, Lee, C.G. Ex. Cox v. (if pleaded) the statute of limitations 288) (footnotes omitted). period pre- he that did so within The even more cases recent found from scribed. adjoining jurisdictions decisions have not (2) If there is no evidence that ignored general principles. these Griffin plaintiff. words refer to the Co., Opinion Pub. v. Mont. (3) If proved are words not action- (1943) P.2d 580 was determined on the ba- per se, no able and there is evidence of that per sis the statement was not libelous any special damage. and, lacking allegations se special dam- (4) If the words are actionable rea- age, complaint failed state an action- only being spoken son of their Swift, Springer able claim. 59 S.D. plaintiff way office, profes- of his (1931) recognized 239 N.W. 171 that at trade, or is sion there no evidence Dakota, least for South the Fox’s Libel Act spoken, that words were so that provisions fol- that plaintiff held such office or exercised applied only to jurisdic- lowed libel that profession such at the trade time tion did not include slander. Brodsky publication. Co., Publishing Journal S.D. (5) If the words are not actionable (1950) recognized N.W.2d 855 if an primary signification, their natural and se, per special article was not libelous dam- innuendo; only and there is no or if the ages alleged. must be That further court puts upon innuendo meaning the words a se, per found that plaintiff for libel they If, cannot possibly bear. how- clearly challenged must be identified ever, reasonably it is conceivable that publication. recognize That case did might any those addressed reason of where, however, alleged an article to be put facts known them upon have susceptible interpre- libelous is of different secondary meaning words ascribed tations, one of which defamatory is and the innuendo, them the then it will be a not, question jury pres- other for the is question meaning for the in which only question ented. The resolved was the words were fact understood. published whether the article was libelous words, though primarily Whenever the per provid- se. understanding The same actionable, yet are reasonably sus- Spriggs, Wyo. ed in 182 P.2d at ceptible defamatory meaning, of a (quoting Cooley, Constitutional grant court will not as a rule the motion (8th ed)): Limitations 955 only for a “It is judge nonsuit. “Nevertheless, we conceive toit be publication the is satisfied that be cannot proper, duty judge, and indeed the of the libel, that, by jury a and if it is found the jury upon the the to instruct law in these such, aside, to be their verdict will be set cases, expected they and it is to be that justified he withdrawing that is in the generally adopt opin- will and follow his their question cognizance.” from Where ion. ambiguous, words the of libel are “Where, however, allegorical, any equivocal, pro- way or in and the constitution jury they they judges have found that that shall were vides be of the law sense, cases,’ in defamatory may meant and used a in ‘as other determine the cases, al jury Liberty fact direction of and Triad law and the ‘under the Inc., Lobby, court,’ must U.S. S.Ct. 2505 perhaps conclude broadly phrased summary judg- was as a simply put the intention has to that been directly ment decision and involved a footing any Sulli- the same with libel cases on perspective van of defamation. prosecutions, and that the other criminal expected receive law jury will be to Lobby, accept- has not been Liberty Inc. from the court.” procedural Wyo- ed as reconstruction of a However, ming summary judgment law. The determinate and foundational basic concepts the context and advanced in this in whether appeal considers issue majority opinion by cause concern that indi- revolution for characterized constitutional rection, something new has been created New to result from York defamation stated intention, by defining without stated either Sullivan, Times Co. v. separate category a of defamation sum- (1964)essentially 11 L.Ed.2d 686 mary embracing change a judgment involvement. See Clarence eliminates Wyoming judgment summary basic law. Morris, ch. 2 and Law Modem Defamation Smolla, Rodney See A. Law Thomas, of Defamation Cooper also Ella ch. See (1992) 12.07[3][b],at 12-35 discussion and Relat- The Law Libel and Slander of convincing requirement clarity for Action, IX, (1973). The at 55 Sulli- ed ch. proof summary of actual malice and the evidentiary convincing clear test van and judgment requirement disproof by joined, in recent times to be came more respondent Liberty Lobby, derived from an evolution- system, federal court Inc.3 change judgment. With- ary for pass purview through sweep of the United States When we in the current denigrating rights American First Supreme to tri- current defamation and Court favoring availability satisfying gains argument of sum- The achieved in the free- 3. speech press accompa- mary judgment case a have in the defamation has doms of been scope Many striking by to the broad attack a less welcome loss. innocent resemblance nied system, particularly formerly go on the American tort result- of vilification who could victims malpractice ing compensation cases. from medical A text no to law for vindication basis, clearly pro-media Furthermore, yields legal longer to a Smol- remedies. have la, 12.07[l][b], (quoting supra, Mar- majority 12-32.3 are of defamers who advised that Evening Corp. Newspaper probably pub- tin Marietta Co., Star they be held will not liable for (D.D.C.1976)), recog- F.Supp. lishing particular likely go a slur are not detailed, prominent, nizes: making overboard exculpatory apologies, completely if indeed against Suits the media often chill first Certainly, they at all. immune retract huge freedoms amendment because generous point will seldom be to the detractor carrying through costs attendant to a defense * * * any compensating for his victim financial Summary thought judgment trial. losses caused the canard. screening particularly of as device useful necessary engage ptole- me to It is not "shielding first cases tool for amendment as a economic, major philosophic maics about these press from harassment.” swirling political trends like a mael- now argument by special interest Persuasive variant society sup- contemporary American strom in groups they expo- from that should be shielded port my should thesis that this court not effec- sure to costs of defense from claims miscon- tively Wyoming constitutional disembowel the clearly unexplored phe- duct or fault is not provision by summary judgment anticipation adjudicatory de- nomenon in current American required meet is in order to federal First products it velopments. lia- Efforts to federalize standards. I do not think that the bility clearly pertinent present Amendment exam- the most Supreme Competitive- the United States ple. ness, cases decided See President’s Council Wyoming Agenda since Sullivan rewrite law Reform. Ex- Court require judiciary for Civil Justice finding, topic tremely profes- fact because the short statutes of limitation wrong is defamation and libel. liability specialty like contended sional actions defa- Certainly can- accept- the United States apparently mation are not found imposition upon anxiety has make able That continued alternatives. procedural ad- many specialized direction of brought economic inter- Constitution aptations now Liberty Lobby, by legislative Inc. and the other to seek ests this nation success Langbein, H. John litigative two the Triad cases. agenda were dissatis- where the results Cf. Myth Dis- Constitutions: The fying. On the Written Trial, Morris, Jury by appearance Harv.J.L. provided Criminal 15 A fair evaluation (1992). 6, Pol’y & Pub. 119 supra, at 62-63: ch. 934 involving cases My

Amendment media the Stones Can Break Name: Nondefa- Constitution, starting United States with matory Negligent Injury Reputation, incorporation application doctrine (1992). 59 point U.Chi.L.Rev. 865 The re United States Constitution to state deci review, sulting however, despite from this by sions the Fourteenth Amendment non-jury Triad cases and their trial 359, 532, Stromberg, 51 283 U.S. S.Ct. and Masson, concepts, is that in the United continuing to v. New Yorker Mag Masson required States factual —Inc., U.S. —, 2419, azine, 111 S.Ct. in review to be jury resolved reordered (1991), by pass 115 L.Ed.2d 447 we course trial decision. cases guide posts along or obstructive Appropriate limitations on the exercise pathway. Overtly, recog that case law recognized speech” “free are in current revolution, nize the case of the new Sulli — See, Freeman, e.g., cases. v. Burson 710; van, 254, U.S. 84 S.Ct. observe 376 —, 1846, U.S. 112 S.Ct. 119 L.Ed.2d 5 Louisiana, application of Garrison v. (1992) State, Zarsky v. 827 S.W.2d 408 64, 209, 379 U.S. 85 S.Ct. 13 L.Ed.2d 125 Likewise, (Tex.App.1992). the courts have (1964); acknowledge application to civil recognized finding assessing fact Welch, Inc., litigation of v. Gertz Robert any First Amendment limitation—for this 323, 2997, 418 94 41 L.Ed.2d U.S. S.Ct. 789 case compensatory liability— defamation 1226, (1974),cert. 459 U.S. 103 denied S.Ct. (as should left Constitu 1233, (1983); 75 467 L.Ed.2d understand actually tion requires) with jury. That emanating the confusion Hutchinson from — recognition Masson, U.S. —, 111 Proxmire, 111, 9, v. 443 120 n. 99 U.S. S.Ct. S.Ct. has support 2419 from other cases. 2675, 9, (1979); pass 2680 n. 61 L.Ed.2d 411 Inc., Stone Essex County Newspapers, v. Time, 279, Pape, Inc. 401 v. U.S. 91 849, (1975) 367 pro Mass. 330 161 N.E.2d 633, (1971); S.Ct. L.Ed.2d then vides a similar an result retrial ordered — U.S. —, Masson, come to 111 S.Ct. for jury decision. Goldwater v. Ginz process, ignore 2419. Within I do not Cir.1969), burg, (2nd 414 F.2d 324 cert. Milkovich, 1, 497 U.S. 110 S.Ct. 2695 to 1049, denied 396 U.S. S.Ct. provide? ask: what answer does it The (1970)approved L.Ed.2d 695 denial of initial majority determined Milkovich that all summary judgment and affirmed re but one incidents reflected in the sulting jury litigation. verdict that libel misquotations involved fact. issues of Forbes, Inc., v. Southard 588 F.2d Cf. Brennan, dissent authored Justice (5th Cir.), cert. denied 444 U.S. joined, whom Justice Marshall found a fur (1979), 62 L.Ed.2d 41 S.Ct. where misquotation. ther issue of fact in the last Judge Thornberry, dissent, recognized hardly That justify adjudi direction can question presented in similar catory fact finding summary judgment de thought with the statement of Justice Roo required Magazine cision to favor Hustler ney special MacGuire, his concurrence here. P.2d at Careful, comprehensive and detailed Furthermore, judgment malice, analysis of fact, malice in malice emplaced disposition through its affi implied, else, malice is something will deposition review, davit and misconduct, we do not have gross negligence, ful ordinary adequate the full record from negligence, Wood, v. Troman 62 Ill.2d appellate evidentiary examination to assess (1975), 340 N.E.2d intentional mis statement, See, forth, sufficiency can be made. conversely, provide, so can as it has, Communications, topics Harte-Hanks Inc. journal world law analy review, Connaughton, sis. In recent 491 U.S. see Paul D. 109 S.Ct. Driscoll 2678, 105 Youm, (1989); Kyu Corp. Ho L.Ed.2d 562 Bose & Harte-Hanks Commu States, Inc., Connaughton: nications v. Consumers Union United U.S. Su 485, 104 preme Application Court’s 80 L.Ed.2d 502 Actual Rule, (1984); Walker, Malice 14 Comm. and the Law 57 Press v. Associated Silbaugh, 1975, 18 See also Kate Sticks L.Ed.2d 1094 Hustler material here. (1967), 88 S.Ct. embodied Conse- cert. denied defined, quently, singularly constitu- 20 L.Ed.2d 880 tionally unquestioned responsibil- clear and reminded that the comfort should be We ity of the defamation and libel cases has, by Wyoming Constitution provided surely ignominiously should not be discard- admirably. past century, sufficed for this by any appellate rewriting Wyo- ed is should then ask ourselves: what We ming Constitution. in this continuum of United States there justify a Supreme Court decisions to now agree relationship I with the balanced process Amendment due deter- Fourteenth responsibili- between freedom to write and our requiring minate invalidation of one of ty significantly negligent for willful and very significant provisions? constitution’s harm: stated,

Again provision is: constitutionally recognized inter- Every person may freely speak, write reputation the individual in his est of being respon- publish subjects, and on all solely not not and can be measured right; the abuse of that and sible for monetary compensation. terms of At the libel, criminal, and all trials for both civil least, has an the individual interest truth, published good in- preserving restoring reputation his ends, justifiable shall be tent [for] through publicly an authoritative and defense, jury having sufficient injurious that an known determination right to determine the facts and the him is in fact To statement about false. of the court. under direction availability foreclose or restrict judicial process art. as a means of secur- Wyo.Const. ing prevents such a determination stated, segment ma- Directly four of the obtaining individual from the effective opinion good determined that mo- jority vindication to which he is entitled. justifiable ends should be tives and for in the defama- disregarded Troman, and discarded 340 N.E.2d at 297. liability as criteria for or the

tion case unwillingness I of an dissent because Maj. op. I cannot thereof. at 920. absence accept adjudicato trial affidavit for Wyoming resolution in constitu- find that ry finding processes fact in a defamation by per- tional reconstruction to be ordered concept, In the more I case. even basic suasive case law the decisions contend that the firmly mandatory would That prece- States Court. United Wyoming should text of the Constitution dent, opinion, justify not my does denied, rejected by any discarded or require invalidation of the constitutional subject by summary on the decision made 20 re- provisions Wyo.Const. judgment. resulting If a suit from libel speech responsibility garding free both personal printed attacks on the obscene I will not invite bad for defamation. faith cannot, Magazine in the pages of Hustler on the unjustifiable ends to be stuck Wyoming system, court be accommo state Wyoming Constitution like barnacles Wyoming text of the Con dated within the wrongdoer immunity from defa- provide a respect of free requiring stitution a dual mation and misconduct. misconduct, I press responsibility any ques- supersession leave of our constitu Overtly, obviously and without would I do tion, degree of fact tion for action the federal courts. engage if I a similar necessary for us to do it. finding, principals its acted not find it Ro Hustler and Metromedia, malice, Inc., 403 U.S. highest degree of intended senbloom v. with the 1811, 1826, 29 L.Ed.2d 296 and viciousness. No semblance bad faith White, (1971), concurring judg is to be J. good faith and honest motive immunity should not be I Consti- ment. Absolute portrayed. envision required health in our retaining validity to cultivate activated tution as a factor guarantee their full First truth, do media and good and honest intent faith right of com of Amendment exercise of the significance for determination have a “ com ‘Neither lies nor false applied judicially perverted to the munication. immunity serve the ends of the munications First

Amendment, suggests and no one their de ” proliferation.’ Time, sirability further or

Inc., (quot at 640 S.Ct. Thompson,

ing St. Amant 1323, 1326, 20 L.Ed.2d 262

(1968)). emphatically amI even more con

vinced that of decision mechanism summary judgment

should not be as a sub analysis the thoughtful

stitute for of citi peers through

zens as our trial.

Goodness, badness, good faith demon

strated malice are not such esoteric con

cepts only judiciary, and not even media, opportunity afforded the

responsibility differentiate.

Consequently, I would like to invite a

trial Hustler opportunity where has the good

prove validity pay faith either price if unable to the examin- convince

ing jury. guide- If that cannot suffice as

posts within behavior our I concepts,

state’s constitutional would re-

quire Supreme States United duty

be the to then first have the rewrit-

ing our state constitution.

Consequently, I dissent. rel., Wyoming,

STATE of ex WYOMING

WORKERS’ COMPENSATION DIVI-

SION, (Petitioner), Appellant RAMSEY,

Judy surviving spouse Ramsey, Appellee

of Steven

(Respondent).

No. 91-244. Wyoming. Court of

Oct. Gen.,

Joseph Meyer, B. Atty. and J.C. DeMers, Gen., Atty. appellant. Sr. Asst. Phillip Willoughby, appel- T. Casper, lee.

Case Details

Case Name: Dworkin v. L.F.P., Inc.

Court Name: Wyoming Supreme Court

Date Published: Sep 18, 1992

Citation: 839 P.2d 903

Docket Number: 89-15, 89-16

Court Abbreviation: Wyo.