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THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: UNDER VIRGINIA LAW
Answer of Defendant (Hustler Magazine) Key Instructions to Jury JURY
TRIAL DEMANDED Reverand
Jerry Falwell, plaintiff herein, by his attorneys, respectfully
represents unto
this Court as follows: THE
PARTIES 1. Plaintiff
is a fundamentalist minister and a
citizen of the State of 2. Defendant
Larry C. Flynt is, upon information
and belief, a citizen of the State of 3. Defendant
Hustler Magazine, Inc.
("Hustler") is, upon information and belief, a corporation organized
under the laws of the State of JURISDICTION 5. This
Court has jurisdiction pursuant to 28
U.S.C. Section 1332 in that there is diversity of citizenship and the
amount in
controversy, exclusive of interest and costs, exceeds the sum of
$10,000.00 COUNT
ONE (Invasion
of Privacy) 6. Plaintiff
repeats and realleges each and
every allegation set forth in paragraphs 1-5 above as if fully set
forth
herein. November
1983 issue of HUSTLER magazine throughout the 8. The
statements and photograph of and concerning
plaintiff were in the form of an advertisement for Compari liquor. A copy of the cover and inside front cover of
the November 1983 issue of HUSTLER magazine is annexed hereto
as Exhibit
A and incorporated by reference
herein. [TEXT OF CAMPARI PARODY AD APPEARS HERE] 11. Defendants
have deliberately, knowingly and
unlawfully used, displayed, distributed and published the name and
photograph
of plaintiff, not in connection with an item of news or the
dissemination of
newsworthy information, but rather accompanied by fictional and
libelous
textual material, merely to attract the attention of the public for the
purpose
of enhancing the sales of HUSTLER magazine. 12. Defendants'
unlawful and wrongful use,
display, publication and distribution of plaintiff's name and
photograph in the
November 1983 issue of HUSTLER magazine have caused plaintiff
great
mental distress and anguish, humiliation, exposure to public ridicule,
hatred
and contempt, and by reason thereof, plaintiff has sustained, is now sustaining and
will continue to sustain intense
mental suffering
and distress which have greatly interfered with his personal and
professional
life, including his reputation and effectiveness as a fundamentalist
minister,
and otherwise damaged plaintiff, in the amount of $5,000,000. 13. Defendants,
and each of them, knew or should
have known prior to publication and distribution of the November 1983
issue of HUSTLER
magazine, that they were using plaintiff's name and photograph for
purposes of
advertising or trade without his written consent, rendering defendants,
and
each of them, liable to plaintiff for punitive damages in the amount of
$10,000,000. COUNT
TWO (Libel) 4. Plaintiff
repeats and realleges each and
every allegation set forth in paragraphs 1-9 above as if fully set
forth
herein. 15. The
foregoing publication of and concerning
plaintiff, together with its inferences and innuendos, is false and
defamatory
in that it was meant by defendants, and is intended to mean, and was
and is understood
by readers of HUSTLER magazine as meaning, among other things,
that
plaintiff comits illegal, immoral and reprehensible acts, that he is an
alcoholic and that he is insincere
and hypocritical in his work as a fundamentalist minister. 16. Such
defamation of plaintiff is libelous per
se in that it imputes to plaintiff a criminal offense involving
moral
turpitude, imputes to plaintiff unfitness to perform the duties of his
office
as a fundamentalist minister and want of integrity in the discharge of
such
duties, and prejudices plaintiff in his calling as a fundamentalist
minister. directly
threatened by defendants' accusations of criminality, immorality and
insincerity. 18. The
foregoing publication was falsely and
maliciously published and/or distributed by the defendants of and
concerning
the plaintiff without plaintiff's consent. At
the time of such publication and distribution, defendants knew or should have known, that the matters
asserted of and
concerning plaintiff were untrue and libelous, or made such assertions
and
statements in reckless disregard of their truth, and in publishing and
distributing such false and defamatory matters, the defendants were
actuated by
actual malice and wrongfully, recklessly and willfully intended by said
publication to injure plaintiff in complete disregard of his reputation
and
good name. 19. By
reason of the foregoing, plaintiff has
been injured in his good name, has suffered mental anguish and
distress, has
been exposed to public hatred, contempt, aversion, disgrace and other
unsavory
public opinion, has been injured in the esteem in which he has been
held as an
individual, has suffered a diminution of his respectability in his
personal and
business dealings and his reputation and effectiveness as a
fundamentalist
minister, all to his damage in the amount of $5,000,000 compensatory
damages
and $10,000,000, punitive damages. COUNT
THREE (Intentional
Infliction of Emotional Distress) 20. Plaintiff
repeats and realleges each and
every allegation set forth in paragraphs 1-9 above as if fully set
forth
herein. 21. In
publishing and distributing the foregoing
publication, defendants acted willfully, intentionally, recklessly and
maliciously
and their conduct was outrageous, extreme and intolerable in that it
offends
generally accepted standards of decency and morality. 22. The
aforesaid wrongful conduct on the part of
the defendants amounted to an intentional infliction of mental
suffering and
severe emotional distress upon the plaintiff. In
particular and without limiting the generality of the
foregoing, the
references to plaintiff and use of his name and photograph on the
inside front
cover of the November 1983 issue of HUSTLER magazine, accusing
plaintiff
of illegal, immoral and reprehensible acts, considered together in the
context
of the other textual materials, photographs and cartoons contained in
said
magazine, caused plaintiff severe emotional anguish and distress. 23. By
reason of the foregoing, plaintiff has
been injured in the amount of $5,000,000 in compensatory damages and is
also
entitled to $10,000,000 in punitive damages. COUNT
FOUR (Invasion
of Privacy) 24. Plaintiff
repeats and realleges each and
every allegation set forth in paragraphs 1-9 above as
if fully set forth herein. Defendant
FDC distributed the March 1984 issue of HUSTLER magazine
throughout the 26. Defendants
have knowingly and without
plaintiff's consent, written or otherwise, in their business and for
purposes
of advertisement or trade, used within the Commonwealth of Virginia and
elsewhere
the name and photograph of plaintiff, a living person; plaintiff's
photograph
and name have been prominently and wrongfully exhibited at page 20 of
the March
1984 issue of HUSTLER magazine in violation of Virginia Code
Section
8.01-40. 27. Defendants
have deliberately, knowingly and
unlawfully used, displayed, distributed and published the name and
photograph
of plaintiff, not in connection with an item of news or the
dissemination of
newsworthy information, but rather
accompanied by fictional and libelous textual material, merely to
attract the
attention of the public for the purpose of enhancing the sales of HUSTLER
magazine. 28. Defendants'
unlawful and wrongful use,
display, publication and distribution of plaintiff's name and
photograph in the
November 1983 issue of HUSTLER magazine have caused plaintiff
great
mental distress and anguish, humiliation, exposure to public ridicule,
hatred
and contempt, and by reason thereof, plaintiff has sustained, is now
sustaining
and will continue to sustain intense mental suffering and distress
which have
greatly interfered with his personal and professional life, including
his reputation
and effectiveness as a fundamentalist minister, and otherwise damaged
plaintiff, in the amount of $5,000,000. 29. Defendants,
and each of them, knew or should
have known prior to publication and distribution of the March 1984
issue of HUSTLER
magazine that they were using plaintiff's name and photograph for
purposes of
advertising or trade without his written consent, rendering defendants,
and
each of them, liable to plaintiff for punitive damages in the amount of
$20,000,000. COUNT
FIVE (Libel) 30. Plaintiff
repeats and realleges each and
every allegation set forth in paragraphs 1-5 and 25 above as if fully
set forth
herein. 31. The
foregoing publication of and concerning
plaintiff, together with its inferences and innuendos, is false and
defamatory
in that it was meant by defendants, and is intended to mean, and was
and is understood
by readers of HUSTLER magazine as meaning, among other things,
that
plaintiff comits illegal, immoral and reprehensible acts, that he is an
alcoholic and that he is insincere and hypocritical in his work as a
fundamentalist minister. such
duties, and prejudices plaintiff in his calling as a fundamentalist
minister. 33. The
purpose and intent of the foregoing
publication was and is to expose plaintiff to public hatred, contempt,
aversion
and disgrace and to induce an evil and unsavory opinion of him in the
minds of
the community, and tends to
disparage
and damage plaintiff in his office, profession or trade.
Plaintiff's effectiveness as a fundamentalist
minister is based on trust and confidence in his morality, honesty and
sincerity, which trust and confidence is directly threatened by
defendants'
accusations of criminality, immorality and insincerity. 34. The
foregoing publication was falsely and
maliciously published and/or distributed by the defendants or and
concerning
the plaintiff without plaintiff's consent. At
the time of such publication and distribution,
defendants knew or should have known, that the matters asserted of and
concerning plaintiff were untrue and libelous, or made such assertions
and
statements in reckless disregard of their truth, and in publishing and
distributing such false and defamatory matters, the defendants were
actuated by
actual malice and wrongfully, recklessly and willfully intended by said
publication
to injure plaintiff in complete disregard of his reputation and good
name. 35. By
reason of the foregoing, plaintiff has
been injured in his good name, has suffered mental anguish and
distress, has
been exposed to public hatred, contempt, aversion, disgrace and other
unsavory public opinion, has been injured
in the esteem in which he has been held as an individual, has suffered
a diminution
of his respectability in his personal and business dealings and his
reputation
and effectiveness as a fundamentalist minister, all to his damage in
the amount
of $5,000,000 compensatory damages and $20,000,000, punitive damages. COUNT
SIX (Intentional
Infliction of Emotional Distress) 36. Plaintiff
repeats and realleges each and
every allegation set forth in paragraphs 1-5 and 25 above as if fully
set forth
herein. 37. In
publishing and distributing the foregoing
publication, defendants acted willfully, intentionally, recklessly and
maliciously
and their conduct was outrageous, extreme and intolerable in that it
offends
generally accepted standards of decency and morality. 38. The
aforesaid wrongful conduct on the part of
the defendants amounted to an intentional infliction of mental
suffering and
severe emotional distress upon the plaintiff. In
particular and without limiting the generality of the
foregoing, the
references to plaintiff and use of his name and photograph at page 20
of the
March 1984 issue of HUSTLER magazine, accusing plaintiff of illegal, immoral and reprehensible acts,
considered together in the context of the other textual materials,
photographs
and cartoons contained in said magazine, caused plaintiff severe
emotional
anguish and distress. 39. By
reason of the foregoing, plaintiff has
been injured in the amount of $5,000,000 in compensatory damages and is
also
entitled to $20,000,000 in punitive damages. WHEREFORE,
Plaintiff demands judgment against the defendants, jointly and
severally, as follows: (a) On
Count One, $5,000,000 compensatory damages and $10,000,000 punitive
damages; (b) On
Count Two, $5,000,000 compensatory damages and $10,000,000 punitive
damages; (c) On
Count Three, $5,000,000 compensatory damages and $10,000,000 punitive
damages; (d) On
Count Four, $5,000,000 compensatory damages and $20,000,000 punitive
damages; (e) On
Count Five, $5,000,000 compensatory damages and $20,000,000 punitive
damages; (f) On
Count Six, $5,000,000 compensatory damages and $20,000,000 punitive
damages;
and (g) On
all counts, the costs and disbursements of this action, reasonable
attorneys'
fees and such other, further and different relief as to the Court seems
just
and proper. Respectfully submitted, REVEREND
JERRY FALWELL By /s/ Howard W. Rhodes Jr.,
Of Counsel Norman Roy Grutman, Jeffrey H.
Daichman,
GRUTMAN MILLER GREENSPOON HENDLER & LEVIN, 505 Park Avenue, New
York, New
York 10022, (212) 888-1900 ANSWER
TO AMENDED COMPLAINT Defendants
Hustler Magazine, Inc., Flynt Distributing Company, Inc., and Larry C.
Flynt
answer the Amended Complaint on file herein as follows: 1. Defendants
have no information or belief
sufficient to enable them to answer the allegations contained in
paragraph 1 of
the Amended Complaint, and basing their denial upon that ground,
generally and
specifically deny each and every allegation contained therein. 2. Defendants
admit that defendant Larry C.
Flynt is a citizen of the State of 3. Defendants
admit the allegations of paragraph 3 of
the Amended Complaint. 4. Defendants
admit the allegations of paragraph
4 of the Amended Complaint. 5. Defendants
generally and specifically deny
each and every allegation contained in paragraph 5 of the Amended
Complaint. 6. In
answer to paragraph 6 of the Amended
Complaint, defendants refer to paragraphs 1 through 5 of this Answer,
and by
such reference reallege each and every allegation contained therein as
though
again set forth in full. 7. Defendants
admit that in the November 1983,
Vol. 10, No. 5, issue of Hustler Magazine, defendant Hustler
Magazine,
Inc. published on the inside front cover an ad and personality parody
accompanied by a photograph of plaintiff, and that defendant Flynt
Distributing
Company, Inc. distributed said issue throughout the United States and
elsewhere. Except as so admitted,
defendants
generally and specifically deny each and every allegation of paragraph
7 of the
Amended Complaint. 8. Defendants
admit that the statements and
photograph contained on the inside front cover of said issue of Hustler
Magazine were in the form of a parody of advertisements for Campari
liquor. Defendants further admit that a
copy of the cover and inside front
cover of the November 1983 issue of Hustler Magazine is annexed to the
Amended
Complaint as Exhibit "A". Except
as so admitted, defendants generally and specifically deny each and
every
allegation in paragraph 8 of the Amended Complaint. 9. Defendants
admit that the statements
reproduced in paragraph 9 of the Amended Complaint are a portion of the
statements
which appear on the inside front cover of the November 1983 issue of Hustler
Magazine. Except as so admitted,
defendants
generally and specifically deny each and every allegation of paragraph
9 of the
Amended Complaint. 10. Defendants
generally and specifically deny
each and every allegation of paragraph 10 of the Amended Complaint. 11. Defendants
generally and specifically deny
each and every allegation of paragraph 11 of the Amended Complaint. 12. Defendants
generally and specifically deny
each and every allegation of paragraph 12 of the Amended Complaint, and
further
allege that plaintiff has not suffered damages in the amount of
$5,000,000, or
damages in any other amount. 13. Defendants
generally and specifically deny
each and every allegation of paragraph 13 of the Amended Complaint, and
further allege that plaintiff is not
entitled
to punitive damages in the amount of $10,000,000, or any other amount. 14. In
answer to paragraph 14 of the Amended
Complaint, defendants refer to paragraphs 1 through 9 of this Answer,
and by
such reference reallege each and every allegation contained therein as
though
again set forth in full. 15. Defendants
deny each and every allegation of
paragraph 15 of the Amended Complaint. 16. Defendants
deny each and every allegation of
paragraph 16 of the Amended Complaint. 17. Defendants
deny each and every allegation of
paragraph 17 of the Amended Complaint. 18. Defendants
deny each and every allegation of
paragraph 18 of the Amended Complaint. 19. Defendants
deny each and every allegation of
paragraph 19 of the Amended Complaint, and further allege that
plaintiff has
not been damaged in the amount of $5,000,000 compensatory damages, or
damages
in any other amount. Defendants further
allege that plaintiff is not entitled to punitive damages in the amount
of
$10,000,000, or any other amount. 20. In
answer to paragraph 20 of the Amended
Complaint, defendants refer to paragraphs 1 through 9 of the Answer,
and by
such reference reallege each and
every allegation contained therein as though set forth in full. 21. Defendants
deny each and every allegation of
paragraph 21 of the Amended Complaint. 22. Defendants
deny each and every allegation of
paragraph 22 of the Amended Complaint. 23. Defendants
deny each and every allegation of
paragraph 23 of the Amended Complaint, and further allege that
plaintiff has
not been injured in the amount of $5,000,000 in compensatory damages,
or in any
amount. Defendants further allege that
plaintiff is not entitled to $10,000,000, or any amount, in punitive
damages. 24. In
answer to paragraph 24 of the Amended
Complaint, defendants refer to paragraphs 1 through 9 of this Answer,
and by
such reference reallege each and every allegation contained therein as
though
again set forth in full. 25. Defendants
admit that in the March 1984, Vol.
10, no. 9, issue of Hustler Magazine, defendant Hustler
Magazine, Inc.,
republished the ad and personality parody which had appeared in the
November
1983 issue of Hustler Magazine. Defendants
further admit that defendant Flynt Distributing
Company, Inc.
distributed the March 1984 issue of Hustler Magazine throughout
the
United States and elsewhere.
Defendants further admit that a copy of the
cover and page 20 of the March 1984 issue of Hustler Magazine
is annexed
to the Amended Complaint as Exhibit "B". Except
as so admitted, defendants deny each
and every allegation contained in paragraph 25 of the Amended Complaint. 26. Defendants
deny each and every allegation of
paragraph 26 of the Amended Complaint. 27. Defendants
deny each and every allegation of
paragraph 27 of the Amended Complaint. 28. Defendants
generally and specifically deny
each and every allegation of paragraph 28 of the Amended Complaint, and
further
allege that plaintiff has not suffered damages in the amount of
$5,000,000, or
damages in any other amount. 29. Defendants
generally and specifically deny
each and every allegation of paragraph 29 of the Amended Complaint, and
further
allege that plaintiff is not entitled to punitive damages in the amount
of
$20,000,000, or any other amount. 30. In
answer to paragraph 30 of the Amended
Complaint, defendants refer to paragraph 1 through 5 and 25 of this
Answer, and
by such reference reallege each and every allegation contained therein
as
though again set forth in full. 31. Defendants deny each and every allegation of
paragraph 31
of the Amended
Complaint. 32. Defendants
deny each and every allegation of
paragraph 32 of the Amended Complaint. 33. Defendants
deny each and every allegation of
paragraph 33 of the Amended Complaint. 34. Defendants
deny each and every allegation of
paragraph 34 of the Amended Complaint. 35. Defendants
deny each and every allegation of
paragraph 35 of the Amended Complaint, and further allege that
plaintiff has
not been damaged in the amount of $20,000,000 compensatory damages, or
damages
in any other amount. Defendants further
allege that plaintiff is not entitled to punitive damages in the amount
of
$20,000,000, or any other amount. 36. In
answer to paragraph 36 of the Amended Complaint,
defendants refer to paragraphs 1 through 5 and 25 of this Answer, and
by such
reference reallege each and every allegation contained therein as
though again
set forth in full. 37. Defendants
deny each and every allegation of
paragraph 37 of the Amended Complaint. 38. Defendants
deny each and every allegation of
paragraph 38 of the Amended Complaint. 39. Defendants
deny each and every allegation of
paragraph 39 of the Amended
Complaint, and further allege that plaintiff has not been injured in
the amount
of $5,000,00 in compensatory damages, or in any amount.
Defendants further allege that plaintiff is
not entitled to $20,000,000, or any amount, in punitive damages. FIRST
AFFIRMATIVE DEFENSE Count
One of the Amended Complaint, for Invasion of Privacy, fails to state a
claim
upon which relief can be granted. SECOND
AFFIRMATIVE DEFENSE Count
Two of the Amended Complaint, for Libel, fails to state a claim upon
which
relief can be granted. THIRD
AFFIRMATIVE DEFENSE Count
Three of the Amended Complaint, for Intentional Infliction of Emotional
Distress, fails to state a claim upon which relief can be granted. FOURTH
AFFIRMATIVE DEFENSE Count
Four of the Amended Complaint, for Invasion of Privacy, fails to state
a claim
upon which relief can be granted. FIFTH
AFFIRMATIVE DEFENSE Count
Five of the Amended Complaint, for Libel, fails to state a claim upon
which
relief can be granted. SIXTH
AFFIRMATIVE DEFENSE Count Six of the Amended Complaint, for Intentional Infliction of Emotional Distress, fails to state a claim upon which relief can be granted. SEVENTH
AFFIRMATIVE DEFENSE The ad
and personality parody published in Hustler Magazine is and was
protected First Amendment expression. EIGHTH
AFFIRMATIVE DEFENSE In
publishing an ad and personality parady using the name and photograph
of
plaintiff, a public figure, defendants did not act with knowledge of
falsity or
reckless disregard for the truth. NINTH
AFFIRMATIVE DEFENSE The ad
and personality parody was obviously a parody which was not susceptible
of
being interpreted as an allegation of any facts regarding plaintiff,
and was
clearly labeled as such. TENTH
AFFIRMATIVE DEFENSE Plaintiff
by his conduct is estopped to assert his causes of action. ELEVENTH
AFFIRMATIVE DEFENSE The
publication complained of was privileged as a fair comment upon a
matter of
public interest. TWELFTH
AFFIRMATIVE DEFENSE Plaintiff,
by his conduct, has aggravated his damages, if any. THIRTEENTH
AFFIRMATIVE DEFENSE The
statements allegedly made by defendants, if any, were not made of or
concerning
the plaintiff. FOURTEENTH
AFFIRMATIVE DEFENSE Plaintiff, a public figure, has surrendered any right of privacy which he might otherwise have. WHEREFORE,
defendants pray judgment against plaintiff as follows: 1. That
plaintiff take nothing by his complaint; 2. for
costs of suit herein; 3. for
reasonable attorneys fees; and 4. for
such other and further relief as the
court deems just and proper. Respectfully
submitted, HUSTLER
MAGAZINE, INC., FLYNT DISTRIBUTING COMPANY, INC., LARRY C. FLYNT By /s/ David O. Carson, Of
Counsel Alan L. Isaacman, David O.
Carson,
COOPER, EPSTEIN & HUREWITZ, A Professional Corporation, Arthur P. Strickland,
STRICKLAND &
ROGERS, 131 Kirk Avenue West, P.O. Box 2886, Roanoke, Virginia 24001,
(703)
982-7787 COURT'S
INSTRUCTION TO THE JURY REGARDING INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS Now,
I'll ask you to go to question number three (3). 3A
says: "Do you find by a preponderance of the evidence that the
defendant,
Larry C. Flynt, conducted himself in such a manner in connection with
the
article in question as to intentionally inflict emotional distress upon
the
plaintiff?" 3B
asks the same question as to Hustler Magazine. 3C
asks the same question as to Flynt Distributing Company. The
court tells you that in answering this question, in order to answer all
or any
part of it "yes" four (4) elements must be shown by a preponderance
of the evidence. One: That the
wrong-doers' conduct was
intentional or reckless. This element is
satisfied where the wrong-doer had the specific purpose of inflicting
emotional
distress or where he intended his specific conduct and knew or should
have
known that emotional distress would likely result.
Two: That the conduct was outragious [sic]
and intolerable in that it offends against the generally accepted
standards of
decency and morality. This requirement
is aimed at limiting frivolous suits and avoiding litigations in
situations
where only bad manners and mere hurt feelings are involved. Three: There was a casual [sic] connection
between the wrong-doer's conduct and the emotional distress. And four: That the emotional distress was
severe. DEFENDANTS'
REQUESTED INSTRUCTIONS REGARDING INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS INSTRUCTION
NO. 18 In
order for you to find in favor of plaintiff on his claim for
intentional
infliction of emotional distress, you must find that the plaintiff has
proven,
by a preponderance of the evidence, each of the following facts: (1)
That defendants' conduct towards plaintiff was extreme and outragious
[sic];
and or in
reckless disregard of the likelihood that plaintiff would suffer severe
emotional
distress; and (3)
That plaintiff suffered severe emotional distress as a direct and
proximate
result of defendants' conduct. In addition,
in order to conclude that the defendants' intentionally inflicted
emotional
distress upon plaintiff by publishing the Campari item, you must find
by clear
and convincing evidence that the defendants acted with actual malice,
as I have
already defined it. INSTRUCTION
NO. 19 In
order for conduct to constitute "extreme and outrageous conduct", as
that term is used in the law, such conduct must be so outrageous in
character,
and so extreme in degree, as to go beyond all possible bounds of
decency, and
to be regarded as atrocious, and utterly intolerable in a civilized
society. It must be such conduct as
would distress a reasonable man of ordinary sensibilities. Mere
insults or accusations do not constitute "extreme
and outrageous conduct". INSTRUCTION
NO. 20 |