Hustler v. Falwell.pdf - Mark Roesler

840 F.2d 691, 693 (9th Cir. 1988) (observing that dismissal "for failure to
state a claim upon which relief could be granted" is reviewed de novo, without
mentioning Rule 12(b)(6)).
II
The district court granted summary judgment on Dworkin's libel claims on
two
independent grounds. First, the court found that the Features could not
reasonably be understood as expressing statements of fact about Dworkin,
[**9] and therefore could not provide a basis for defamation liability.
Second, the court found that even if the Features did contain false statements
of fact, Dworkin had presented no evidence of malice as required by New York
Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 [*1193]
(1964) ("New York Times malice"), and therefore had failed to establish a
genuine issue of material fact with respect to an issue on which she bore the
burden of proof. If upheld, either of these conclusions would also dispose of
Dworkin's intentional infliction of emotional distress n2 and false light
privacy n3 claims.
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n2 Leidholdt, 860 F.2d at 893; Ault, 860 F.2d at 880; see Falwell, 108 S. Ct.
at 882. the district court, which rendered its decision before the Supreme Court
handed down Falwell, properly granted summary judgment on Dworkin's
emotional
distress claims on a different ground. The district court reasoned, "whatever
the label, Dworkin cannot maintain a separate cause of action for mental and
emotional distress where the gravamen is defamation." Dworkin, 668 F. Supp. at
1420. As we recently noted, "an emotional distress claim based on the same
facts
as an unsuccessful libel claim cannot survive as an independent cause of
action." Leidholdt, 860 F.2d at 893 n. 4.
Although the complaint sets forth separate counts for emotional distress and
outrage, appellants have not differentiated these claims before us or the
district court. The district court correctly held that these counts assert the
same claim. "The tort of outrage is not spearable from intentional infliction of
emotional distress." Id. at 892 n.2. [**10]
n3 Leidholt, 860 F.2d at 893; Ault, 860 F.2d at 880; see Time, Inc. v. Hill,
385 U.S. 374, 390, 394, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). Furthermore, as
with the emotional distress claim. Dworkin's false light privacy claim is
"sufficiently duplicative of libel" as to be subsumed within it. Leidholdt, 860
F.2d at 893 n.4. In order to survive as a separate cause of action, a false
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867 F.2d 1188, *1193; 1989 U.S. App. LEXIS 565, **10;
16 Media L. Rep. 1113
light claim must allege a nondefamatory statement. If the statements alleged are
defamatory, the claim would be for defamation only, not false light privacy. See
Time, 385 U.S. at 390-91. In this case, Dworkin has strenuously argued that
Hustler's statements are defamatory. Consequently, she has failed to state a
false light claim; the false light aspects of her privacy claim are subsumed in
her libel claims.