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

839 P.2d 903, 20 Media L. Rep. (BNA) 2001, 1992 Wyo. LEXIS 133, 1992 WL 226361

• Court: Wyoming Supreme Court
• Decided: September 18, 1992
• Docket: 89-15, 89-16
• Status: Published

Opinions

GOLDEN, Justice.

In this appeal a public-figure plaintiff who is an outspoken opponent of pornography seeks reversal of the summary judgment entered against her in her defamation action against certain media defendants.¹ She filed her defamation action because statements concerning her appeared in an article published in the July, 1985 issue of Hustler magazine. That article was recently before us in Spence v. Flynt, 816 P.2d 771 (Wyo.1991), cert. denied, — U.S. —, 112 S.Ct. 1668, 118 L.Ed.2d 388 (1992).

With the issues raised here we must explore the meaning of the free speech/libel provision of the Wyoming Constitution,² and the relationship of that provision to prevailing First Amendment jurisprudence of the United States Supreme Court.³

In particular, the public-figure plaintiff maintains that Wyoming’s free speech/libel constitutional provision precludes a state trial court’s use of summary judgment procedure in a public-figure libel action against a media defendant. A jury must decide all issues, the public-figure plaintiff asserts. The public-figure plaintiff also contends that the challenged statements were defamatory falsehoods and not protected speech. In the alternative, the public-figure plaintiff argues that even if the challenged statements are found to be “true” or protected speech under prevailing First Amendment law, under this state’s free speech/libel constitutional provision the media defendant bears the burden of proving that the statements were published with good intent and for justifiable ends.

For the reasons given below, we reject the public-figure plaintiffs claims and affirm the trial court’s order granting summary judgment against all of the plaintiffs below on all of the counts contained in the complaint.

ISSUES

The public-figure plaintiff presented these issues for review:

1. Whether this Court will give full force and meaning to Wyoming’s Constitutional provision which provides that “the jury [has] the right to determine the facts and the law, under the direction of the court” in a libel case.

2. Whether the publication was protected “opinion” and whether or not the determination of what is opinion is left to the jury under Wyoming’s Constitution.

3. Whether the publication was made with “actual malice.”

4. Whether the trial court invaded the province of the jury and resolved a disputed factual issue against Andrea Dworkin.

The media defendants rephrased the issues in this way:

1. Whether the statements made about plaintiff Andrea Dworkin were constitutionally protected statements of opinion.

2. Whether summary judgment was improper under Article I, Section 20 of the Wyoming Constitution.

a. Whether Article I, Section 20 forbids summary judgment in a libel action.

b. Whether the court’s responsibility under the First Amendment to grant summary judgment on constitutional issues can be superseded by a provision of the state constitution.

3. Whether plaintiff Andrea Dworkin, a public figure, met her burden of coming forward with clear and convincing evidence that defendants published falsehoods about her with knowledge that they were false or with a subjective awareness of probable falsity.

4. Whether the publication about Dwor-kin was false and defamatory.

5.Whether there was a genuine issue of material fact with respect to Dwor-kin’s advocacy of incest, bestiality and sex with children.

BACKGROUND

The public-figure plaintiff, Andrea Dwor-kin (hereinafter Dworkin), is an outspoken opponent of pornography who has engaged in vigorous and robust national debate on the subject. She has worked to accomplish the passage of an anti-pornography ordinance in major cities in the United States and has written books and articles on a variety of subjects, including her opposition to pornography and her support of feminism and the women’s liberation movement. She is an admitted public figure.

In earlier litigation filed by Dworkin against some of the same media defendants in this case, she was represented by lawyer Gerry Spence. See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188 (9th Cir.1989), cert. denied, 493 U.S. 812, 110 S.Ct. 59, 107 L.Ed.2d 26. As a result of Spence’s representation of Dworkin, the media defendants in this case published an article in the July, 1985 issue of Hustler magazine featuring Spence as “Asshole of the Month.” Spence v. Flynt, 816 P.2d at 793. In addition to speaking of and concerning Spence, the article refers to Dworkin. After stating that Spence on behalf of “the little guy” has won substantial monetary judgments against big corporations and would like to add Hustler to his list, the article speaks of Dworkin:

His client is “little guy” militant lesbian feminist Andrea Dworkin, a shit-squeezing sphincter in her own right. In her latest publicity-grab Dworkin has decided to sue Hustler for invasion of privacy among other things.

Dworkin seems to be an odd bedfellow for “just folks,” “family values” Spence. After all, Dworkin is one of the most foul-mouthed, abrasive manhaters on Earth. In fact, when Indianapolis contemplated an antiporn ordinance co-authored by Dworkin, she was asked by its supporters to stay away for fear her repulsive presence would kill the statute * * *. Considering that Dworkin advocates bestiality, incest and sex with children, it appears Gerry “this Tongue for Hire” Spence is more interested in promoting his bank account than the traditional values he’d like us to believe he cherishes.

This case is a nuisance suit initiated by Dworkin, a crybaby who can dish out criticism but clearly can’t take it. The real issue is freedom of speech, something we believe even Dworkin is entitled to, but which she would deny to anyone who doesn’t share her views. Any attack on First Amendment freedoms is harmful to all [,] Spence’s foaming-at-the-mouth client especially. You’d think someone of Spence’s stature would know better than to team with a censor like Dworkin.

As a result of the publication of this article, Dworkin filed this lawsuit. She was one of three plaintiffs named in the action. The other two plaintiffs were Priscilla Moree, individually and as a representative of the Jackson, Wyoming Chapter of the National Organization for Women; and Judith Fouts, individually and as a representative of the Wyoming Chapter of the National Organization for Women. The complaint contained four claims. All of the plaintiffs alleged three claims: the media defendants, in publishing the article attacking the plaintiffs’ attorney, sought to deprive the plaintiffs of obtaining justice, as guaranteed by Wyo. Const, art. 1, § 8; the media defendants’ publication and distribution of the article constituted the tort of outrage (intentional infliction of emotional distress); and the media defendants’ publication and distribution of the article constituted an overt act of conspiracy to discredit the plaintiffs and their attorney and to interfere with their exercise of rights under the Wyoming Constitution. For the fourth claim, Dworkin alone alleged that the media defendants’ publication and distribution of the article constituted a libel of her. Under each claim, the plaintiffs sought fifty million dollars actual damages and one hundred million dollars punitive damages.

The parties conducted discovery, following which the plaintiffs moved for judgment on the pleadings as to the libel and outrage claims, and the media defendants moved for judgment on the pleadings or, in the alternative, summary judgment on all claims. The trial court held a hearing on the motions, then issued a decision letter, and finally entered an order denying the plaintiffs’ motion and granting the media defendants’ motion. This appeal followed.

In Dworkin’s initial appellate brief, she addressed only issues relating to her libel claim. In the media defendants’ appellate brief, they asserted that the plaintiffs had abandoned the other three claims (outrage, deprivation of justice, and conspiracy) by not raising issues relating to them in their appeal. In Dworkin’s reply appellate brief, she contended that plaintiffs had not abandoned the other three claims. She contended that the trial court’s decision letter was silent as to those claims and covered only dismissal of Dwor-kin’s libel claim. We disagree. The media defendants’ motion for judgment on the pleadings or, in the alternative, summary judgment was directed to “all counts of the complaint.” In its decision letter, the trial court explained that the article was constitutionally protected and that, as a matter of law, the media defendants were entitled to judgment. The trial court’s order granted their motion for summary judgment which was directed to all claims. It is clear to this court that the trial court’s order disposed of all claims. Plaintiffs’ failure to raise on appeal issues relating to the non-libel claims constitutes an abandonment of those issues. See State Highway Comm’n v. Triangle Dev. Co., 371 P.2d 408 (Wyo.1962), and Wyuta Cattle Co. v. Connell, 43 Wyo. 135, 299 P. 279 (1931). Even if the plaintiffs had not abandoned those claims, our decision today is dispositive of those issues.

We now turn to the issues remaining for our review.

DISCUSSION

1. Whether Wyo. Const, art. 1, § 20, precludes summary judgment in libel actions.

Wyo. Const, art. 1, § 20, says that

[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right, and in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under the direction of the court.

Focusing on the provision’s language “the jury having the right to determine the facts and the law, under the direction of the court,” Dworkin asserts that “our framers granted preferential protection” to libel victims, namely, that no court can enter summary judgment in a libel action. Dworkin contends that all issues in a libel action must be presented to and decided by a jury. To develop and prove her position with respect to this state constitutional provision, Dworkin, and any other similarly situated litigant, must use “a precise, analytically sound approach. Counsel must provide [this court] with proper arguments and briefs to ensure the future growth of this important area of law.” Robert F. Utter, Advancing State Constitutions in Court, Trial, Oct. 1991, at 45. Regrettably, Dworkin has failed to support her assertion and contention with appropriate constitutional analysis, legal authority, or cogent argument. In the face of such failure, our rule has been swift and sure: we refuse to consider the alleged error. Burg v. Ruby Drilling Co., Inc., 783 P.2d 144, 153 (Wyo.1989). In this instance, however, in order to foster and promote the interpretation of our state constitution through an appropriate analytical technique,⁴ we choose to consider the issue presented more fully than we did in Spence v. Flynt, in which we summarily rejected the same contention by Dworkin’s counsel.

Historically, our state trial courts have granted summary judgments in libel actions and this court has affirmed many of them;⁵ this court has not had occasion until now to answer fully the precise issue Dworkin raises here. This court has, however, had occasion in the past to consider the constitutional language in question, and we find that consideration illuminating. In Spriggs v. Cheyenne Newspapers, 63 Wyo. 416, 182 P.2d 801 (1947), this court affirmed a verdict in favor of a media defendant after a review of the record convinced the court that the allegedly defamatory articles were true and published with good intent and for justifiable ends. Among the various points raised on appeal, the plaintiff insisted that in closing argument “he was entitled to argue either his own view or the view of others concerning the law under which the case should be decided entirely apart from what the court stated the law of this state in fact was.” Spriggs, 63 Wyo. at 427, 182 P.2d at 804. After reviewing the decisions of sister states⁶ having constitutional provisions textually similar to this state’s free speech/libel provision, this court concluded that the trial court had correctly ruled the plaintiff could not discuss the law of the case independently of the instructions given by the court to the jury for their guidance. Spriggs, 63 Wyo. at 428, 182 P.2d at 809. In its review of sister states’ decisions, this court explored the “judicial history of this and other like provisions in other state constitutions as an outgrowth of English and early American law concerning the subject of criminal libel * * Spriggs, 63 Wyo. at 428, 182 P.2d at 804. In light of that review, the court doubted the correctness of a jury instruction, earlier examined in Nicholson v. State, 24 Wyo. 347, 157 P. 1013 (1916), to the effect that the jury could disregard the court’s instructions and apply the jury’s own notion of what the law was. Spriggs, 63 Wyo. at 427, 182 P.2d at 804. Drawing on decisions from Colorado, Missouri, Ohio, and, in particular, Mississippi, this court demonstrated that our constitutional provision

grew out of the practice in England as modified by what is known as the Fox Libel Act. Prior to that act in prosecutions for libel the verdict of the jury was special; the only question submitted to the jury being whether the alleged libel had been published and whether the language supported the innuendo. The question of libel or no libel was determined by the court. By the Fox Act the jury was authorized to return a general verdict of guilty, or not guilty, as in other criminal cases, and thus decide the question of libel or no libel, formerly decided by the court.

Spriggs, 63 Wyo. at 427-28, 182 P.2d at 804 (quoting Nicholson v. State, 24 Wyo. 347, 157 P. 1013, 1015 (1916)).

In Spriggs this court quoted with approval from Oakes v. State, 98 Miss. 80, 54 So. 79, 83, 33 L.R.A. (N.S.) 207:

If juries have the right to determine the law of libel for themselves, free from the control of the court, the result would be not only that the law would be uncertain, because of the different views which different juries might take of it, but their judgment of the law, however erroneous, would be final; for in that event neither the trial court nor this court would have any right to review same, and could grant no relief to a defendant, however erroneously he may have been convicted. The court would have no right to decide any question of law which might arise on the trial, by demurrer or otherwise. Should a citizen, under this construction of the Constitution, be indicted for libel, and the matter charged to be such be never so harmless or lawful, the court would be powerless to prevent his conviction and punishment, should the jury decide that, in its judgment, the matter charged was libelous. The jury would be the judge of the meaning of the Constitution and statutes, whether statutes were valid, what the common law is, what the law of privilege is — in short, of all questions of law which could arise on the trial.

Spriggs, 63 Wyo. at 431, 182 P.2d at 806.

This court continues to accept that reasoning as valid. For further historical perspective on the purpose of the Fox Act to protect freedom of speech by restoring to juries the same, but no greater, power in libel prosecutions than they had in other criminal prosecutions, see Construction of Constitutional or Statutory Provision Giving Jury Power to Determine Law and Facts in Action for Libel or Slander, 38 (1915 D) Ann. Cases 1261 (1915); Annotation, Effect of provision that jury shall determine the law and the facts in libel cases, 51 L.R.A.(N.S.) 369 (1914); Annotation, Effect of provision that jury shall determine the law and the facts in libel cases, 33 L.R.A.(N.S.) 207-12 (1911).

Although in Spriggs this court reviewed the history of the substance of Wyoming’s free speech/libel constitutional provision, this court did not review the history of how that provision became a part of the state constitution. That history can be a valuable aid in interpreting the scope of a provision of the state constitution. Robert F. Utter and Sanford E. Pitler, Presenting a State Constitutional Argument: Comment on Theory and Technique, 20 Ind. L.Rev. 635, 657 (1987). In our effort to understand the constitutional language in question here we begin with a review of the proceedings of our state constitutional convention.

Convening in September, 1889, the constitution’s framers had copies of the proposed and soon-to-be ratified constitutions of Idaho, North Dakota, South Dakota, Montana, and Washington.⁷ Richard K. Prien, The Background of the Wyoming Constitution, iii (Aug. 1956) (unpublished M.A. Thesis, University of Wyoming); T.A. Larson, History of Wyoming, 246-47 (1965). As our own examination reveals, and as Prien points out, a side-by-side comparison of article 6, § 5 of the South Dakota Constitution, with Wyoming’s art. 1, § 20, the free speech/libel provision in question, reveals nearly identical text.⁸ See, Prien, supra at 49-50. A comparison with Mont. Const, art. II, § 7, reveals closely similar text as well.⁹ According to our research of the Journals and Debates of the Constitutional Convention of the State of Wyoming (1889), the framers established Committee No. 1 to consider the preamble and the declaration of rights article of the state charter, of which the free speech/libel provision is a part. Id. at 18. George W. Baxter of Laramie County was on that committee. Id. at 22; see also Henry J. Peterson, The Constitutional Convention of Wyoming, University of Wyoming Publications in Science, Vol. VII, No. 6 (1940). According to Melville C. Brown, the president of the convention, Mr. Baxter was “the author of much of our declaration of rights.” Melville C. Brown, “Constitution Making,” Address Given at a Meeting of Pioneers at Cheyenne, Wyoming, Winter 1898 reprinted in Wyoming Historical Collections, First Biennial Report of the State Historian of the State of Wyoming (1920). Unfortunately, as we have previously noted,¹⁰ reports of the several standing committees do not exist. Equally unfortunate, our review of the proceedings, and in particular Mr. Baxter’s recorded discussions as reported in the floor debates, has not revealed any comment specifically concerning the free speech/libel constitutional provision in question. In the absence of helpful information from these sources, we look to other recognized sources.

We agree with Prien’s conclusion that it is likely the framers borrowed our free speech/libel constitutional provision from South Dakota, with some consideration given the Montana provision. Prien, supra, at 49-50. Working with that likelihood, we have turned to those sister states for judicial opinions which might give us guidance. In Brodsky v. Journal Publishing Co., 73 S.D. 343, 42 N.W.2d 855 (1950), the South Dakota Supreme Court affirmed a directed verdict for the media defendant in the face of the plaintiff’s contention that it was for the jury to determine whether or not the published article referred to the plaintiff. After reciting S.D. Const, art. 6, § 5, upon which the plaintiff relied and which as noted is nearly textually identical to our free speech/libel provision, the court stated:

Constitutional provisions and statutes having similar import have been adopted in other jurisdictions. Springer v. Swift, 59 S.D. 208, 239 N.W. 171, 78 A.L.R. 1171. A review of the cases which have construed such provisions justifies the conclusion that they have not taken from the court or imposed upon the jury the duty of determining whether a communication is capable of a defamatory meaning. Egan v. Eastwood, 36 S.D. 42, 153 N.W. 917; 53 C.J.S., Libel and Slander, § 223(b); see also annotation in 33 L.R.A.N.S. 207. * * * Whether the published article in the instant case was libelous per se was a question for the court.

Brodsky, 42 N.W.2d at 857.

Even more helpful than Brodsky for our immediate purpose on the question of the court’s power to decide questions of law in a libel case is Williams v. Pasma, 202 Mont. 66, 656 P.2d 212, (1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2122, 77 L.Ed.2d 1302 (1983). There, the Montana Supreme Court squarely held that that state’s free speech/libel constitutional provision, textually similar to ours, does not preclude summary judgment in libel cases. In affirming a summary judgment in favor of a member of the state Democratic committee, the court quoted from its earlier decision in Griffin v. Opinion Pub. Co., 114 Mont. 502, 512, 138 P.2d 580, 586 (1943):

While our Constitution like that of Missouri, Colorado, South Dakota and Wyoming provides that in libel suits “the jury, under the direction of the court, shall determine the law and the facts,” yet the decisions clearly show that the function of the court and jury is not greatly different in the trial of libel from what it is in other cases.

In other words, it is for the court and not the jury to pass upon demurrers to the complaint; upon the admissibility of the evidence; upon motions for nonsuit; upon motions for a directed verdict; upon motions for a new trial and upon motions to set aside verdicts or vacate judgments.

Pasma, 656 P.2d at 215.

In view of our case law, the history of our constitutional provision, and the helpful opinions from sister jurisdictions having textually similar constitutional provisions, we hold that Wyo. Const, art. 1, § 20, does not preclude the trial court’s use of summary judgment procedure in a defamation action.

2. Summary judgment procedure in libel cases.

In Adams v. Frontier Broadcasting Co., 555 P.2d 556, 562 (Wyo.1976), this court recognized that a libel plaintiff’s status as a public figure invokes the United States Supreme Court’s actual malice standard for liability. We had recognized and adopted that standard in Phifer v. Foe, 443 P.2d 870, 41 A.L.R.3d 1078 (Wyo.1968). We often have applied that standard in affirming summary judgments. See, e.g., Oil, Chemical & Atomic Workers Int’l v. Sinclair Oil Corp., 748 P.2d 283, 287-89 (Wyo.1987); McMurry v. Howard Publications, Inc., 612 P.2d 14, 17 (Wyo.1980); MacGuire v. Harriscope Broadcasting Co., 612 P.2d 830, 831-33 (Wyo.1980); cf. Williams v. Blount, 741 P.2d 595 (Wyo.1987).

The actual malice standard prevents a public figure, such as Dworkin, from recovering damages for a defamatory falsehood relating to a matter of public concern unless she proves with convincing clarity that the statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Milkovich v. Lorain Journal Co., 497 U.S. 1, 10, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1, 18 (1990); Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 659, 109 S.Ct. 2678, 2681, 105 L.Ed.2d 562, 571 (1989); Hustler Magazine Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 878-79, 99 L.Ed.2d 41, 48 (1988) (same standard applies in action alleging intentional infliction of emotional distress); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 502, 104 S.Ct. 1949, 1960, 80 L.Ed.2d 502, 517 (1984); Curtis Publishing Co. v. Butts, 388 U.S. 130, 162, 87 S.Ct. 1975, 1996, 18 L.Ed.2d 1094, 1116-17 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. , 11 L.Ed.2d 686, 706-07, 95 A.L.R.2d 1412 (1964). That actual malice standard derives from the United States Supreme Court’s interpretation of the First Amendment’s free speech clause.¹¹

This state’s free speech/libel constitutional provision is textually different from the free speech clause of the First Amendment to the United States Constitution. In comparison with the text of its federal counterpart, Wyoming’s free speech/libel provision is more elaborate and clearly worded. Expansive protection for freedom of expression seems to be invited by the state text that “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right * * This provision, like similar provisions in thirty-eight other state constitutions, is phrased as an affirmative right, in contrast to the First Amendment’s negative phrasing that restrains government action. The Interpretation of State Constitutional Rights, 95 Harvard L.Rev. 1324, 1399 (1982). Yet, the additional language of the state provision, that truth when published with good intent and for justifiable ends is a sufficient defense to libel, suggests a contraction of the protection for expression. See Garrison v. State of Louisiana, 379 U.S. 64, 70 n. 7, 85 S.Ct. 209, 214 n. 7, 13 L.Ed.2d 125, 130-31 n. 7 (1964) for a list of jurisdictions having similar, seemingly restrictive constitutional or statutory provisions. See also Frederic Jesup Stimson, The Law of the Federal and State Constitutions of the United States, §§ 60-61, pp. 144-46 (1908).

Additional evidence suggests a contraction of the protection for expression under our state constitution; Wyo. Const, art. 1, § 8, states in pertinent part: “[Ejvery person for an injury done to reputation shall have justice administered without sale, denial or delay.” ¹² Of course, under the New York Times doctrine, as Garrison recognized, “where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger interest, secured by the Constitution, in the dissemination of truth.” Garrison, 379 U.S. at 72-73, 85 S.Ct. at 215, 13 L.Ed.2d at 132.

“[TJhere is no reason why we should not apply Wyoming constitutional provisions in the administration of our jurisprudence, as long as they do not infringe upon the constitutional standards of the United States Constitution.” Richmond v. State, 554 P.2d 1217, 1223 (Wyo.1976). Does this state’s free speech/libel constitutional provision infringe upon the First Amendment? If it does, if it is more restrictive (less protective) of the fundamental right to freedom of speech than the interpretation of that right by the United States Supreme Court, which, of course, is deemed the minimum permissible, then this court is constitutionally obligated to apply the less restrictive (more protective) federal interpretation. U.S. Const. art. VI; and Wyo. Const. art. 1, § 37 and art. 21, § 24; State ex rel. Mansfield v. State Bd. of Law Examiners, 601 P.2d 174, 75 (Wyo.1979); Doe v. Burk, 513 P.2d 643, 644 (1973). On the other hand, if this state’s free speech/libel constitutional provision is less restrictive (more protective) than the First Amendment as interpreted by the United States Supreme Court, then, of course, we are free to apply our state provision which enlarges the right. Richmond, 554 P.2d at 1223.

In this case, however, it is unnecessary for us to engage in the rigorous examination required to determine whether our state free speech/libel constitutional provision provides more protection for freedom of speech than afforded under prevailing federal First Amendment law. That is simply because the federal floor in the public-figure/media defendant libel field, to be applied in this case, adequately protects the media defendants here from liability to Dworkin, as we shall show. And, as our prior libel case law richly illustrates, this court has readily embraced the federal doctrine in this specific area of free speech jurisprudence. That is not to say, however, that in a future case in a different area of free speech jurisprudence, this court would not undertake the necessary effort to determine the full scope of our free speech/libel constitutional provision.

In cases in which the fundamental right of freedom of speech is involved, as here, this court has declared:

The best procedural protection for freedom of speech, which [the United States Supreme Court] standard is designed to protect, is found in the remedy of summary judgment which the courts have utilized freely in such cases. The chilling effect of litigation and the associated expense and inconvenience frequently have led courts to conclude that summary judgment is the most appropriate remedy in an instance such as this in order to minimize that chilling effect as much as possible.

Adams, 555 P.2d at 566 (citations omitted).

In applying the actual malice/convincing clarity standard in the summary judgment context, this court follows the same approach it uses in any other summary judgment setting: we have the same task as the trial court, we have the same material as that court, and we follow the same standards. Sinclair Oil, 748 P.2d at 288-89.

3. Whether the Hustler statements are actionable as a matter of law.

A. Milkovich Analysis.

In Milkovich, the United States Supreme Court’s recent opinion in First Amendment libel jurisprudence, the Court refused to recognize, in addition to the established constitutional safeguards in the freedom of speech area, “still another first amendment-based protection for defamatory statements that are categorized as ‘opinion’ as opposed to ‘fact.’ ” Milkovich, 497 U.S. at -, 110 S.Ct. at 2705, 111 L.Ed.2d at 17. Thus, existing constitutional doctrine adequately secures the “breathing space” which “freedoms of expression require in order to survive.” Id., 497 U.S. at -, 110 S.Ct. at 2706, 111 L.Ed.2d at 18.¹³ One rule of that existing protective constitutional doctrine is that “a statement of opinion relating to matters of public concern which does not contain a provably false connotation will receive full constitutional protection.” Id. See, e.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). The doctrine also provides full protection for “statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.” Milkovich, 497 U.S. at -, 110 S.Ct. at 2706, 111 L.Ed.2d at 19. See, e.g., Falwell, 485 U.S. at 50, 108 S.Ct. at 879, 99 L.Ed.2d at 48. As the Court stated in Milkovich, “This provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our nation.” Milkovich, 497 U.S. at -, 110 S.Ct. at 2706, 111 L.Ed.2d at 19.

As revealed by the Court’s analysis of the statements reviewed in Milkovich, in determining whether an alleged defamatory falsehood purports to state or imply “actual facts about an individual,” a court must scrutinize the type of language used, the meaning of the statement in context, whether the statement is verifiable, and the broader social circumstances in which the statement was made. Id., 497 U.S. at -, 110 S.Ct. at 2706-07, 111 L.Ed.2d at 18-19; and see dissenting opinion of Brennan, J., 497 U.S. at -, 110 S.Ct. at 2709, 111 L.Ed.2d at 21.

B. Application of the Milkovich Analysis.

We shall now scrutinize the Hustler statements about Dworkin using the analytical technique applied in Milkovich.

• The type of language used.

The kind of language used may signal readers that a writer is not purporting to state or imply actual, known facts. In Milkovich, the Court referred to Greenbelt Coop. Publishing Ass’n, Inc. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), where the Court held that the word “blackmail,” when used by a newspaper to characterize a land developer’s negotiation position with the city, was not slander when spoken and not libel when written. The Court explained that “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable.” Greenbelt, 398 U.S. at 14, 90 S.Ct. at 1542, 26 L.Ed.2d at 15. In Falwell, the Court held an ad parody “could not reasonably have been interpreted as stating actual facts about the public figure involved.” Id., 485 U.S. at 50, 108 S.Ct. at 879, 99 L.Ed.2d at 48. In Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 284-86, 94 S.Ct. 2770, 2781-82, 41 L.Ed.2d 745, 762-63 (1974), the Court found the word “traitor” in a literary definition of a union “scab” was not actionable since it was used “in a loose, figurative sense” and was “merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members.” Abusive epithets, vulgarities and profanities are nonactionable. Rodney Smolla, Law of Defamation § 4.03, at 4-09 to -10 and § 6.12[10], at 6-52 (1991); see cases cited therein. The ad hominem nature of such language easily identifies it as rhetorical hyperbole which, as a matter of law, cannot reasonably be understood as statement of fact. Clearly falling into this category are Hustler’s statements characterizing Dworkin as: “ ‘little guy’ militant lesbian feminist,” a “shit-squeezing sphincter in her own right,” “one of the most foul-mouthed, abrasive manhaters on Earth,” a “repulsive presence,” “a cry-baby who can dish out criticism but clearly can’t take it,” “Spence’s foaming-at-the-mouth client,” and “a censor.” Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim.

• The meaning of the statement in context.

Certain formats — editorials, reviews, political cartoons, monthly features — signal the average reader to expect a departure from what is actually known by the writer as fact. As explained in another case, “[t]he reasonable reader who peruses [a] column on the editorial or Op-Ed page is fully aware that the statements found there are not ‘hard’ news like those printed on the front page or elsewhere in the news sections of the newspaper.” Ollman v. Evans, 750 F.2d 970, 986 (D.C.Cir.1984), cert. denied 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). See also Smolla, supra, § 6.12[4], n. 252 (collecting cases).

The Hustler article appears under the heading “Bits and Pieces” and is a regular monthly feature. The tone of the article is pointed, exaggerated and heavily laden with emotional rhetoric invoking first amendment principles. We are convinced that the average reader is fully aware that the statements found there are not “hard news.” Readers of that column expect that Hustler’s writers will make strong opinionated statements in that column, a recognized home of opinion and comment. That proposition is inherent in the very notion of a regularly appearing “Bits and Pieces” page which is akin to an editorial page.

• Verifiability of the statements.

There are four statements in the article which appear more likely to be objectively capable of proof or disproof and about which we will say more below. They are that Dworkin is a lesbian; supporters of the antipornography ordinance asked her to stay away; she advocates bestiality, incest and sex with children; and she initiated a nuisance suit. The remainder of the statements in the article, however, are not capable of being proved by objective means as either false or true. The terms “militant feminist,” “shit-squeezing sphincter,” “publicity-grab,” “foul-mouthed abrasive manhater,” “cry-baby,” “foaming-at-the-mouth,” and “censor” are hopelessly vague, imprecise, indefinite and amorphous. These terms are loosely definable and subjectively interpreted in such a variety of contexts that they cannot support an action for defamation. “Lacking a clear method of verification with which to evaluate a statement * * * the trier of fact may improperly tend to render a decision based upon approval or disapproval of the contents of the statement, its author, or its subject.” Ollman, 750 F.2d at 981. See also Smolla, supra, § 6.12[5].

• The broader social circumstances in which the statement was made.

The importance of social context has been recognized by the United States Supreme Court. The Court has observed, concerning the nonactionable words “scab” and “traitor” as applied to an employee who crossed a picket line, that “such exaggerated rhetoric was common place in labor disputes.” Old Dominion, 418 U.S. at 286, 94 S.Ct. at 2782, 41 L.Ed.2d at 763. Just as labor’s historical confrontation with management presents a widely recognized arena in which bruising and brawling, rough and tumble debate is the daily fare, so does the social, moral, and political clash between pornographers and antipornogra-phers. Dworkin is an antipornography activist whose activities are in the form of public advocacy and direct political involvement. She participated in the drafting of the Indianapolis antipornography ordinance that was enacted and then held unconstitutional. See Am. Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir.1985). Hustler’s Bits and Pieces article is an ad hom-inem attack against an advocate of a social, moral and political viewpoint contrary to Hustler’s. The statements in question were uttered in the context of an ongoing debate in which Dworkin seeks to destroy the industry of which Hustler is a part. In response, Hustler seeks to destroy Dwor-kin’s viewpoint by vilifying its advocate. In such a heated and spirited confrontation, of which the statements are a part, abusive epithets, exaggerated rhetoric and hysterical hyperbole are expected. “The offending phrases in this article are, unfortunately, representative of the type of language generated in a dispute over such a subject.” Ault v. Hustler Magazine, Inc., 860 F.2d 877, 881 (9th Cir.1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1989).

We agree with that said by the Ninth Circuit Court of Appeals: “Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are.” Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir.1966).

Having applied the Milkovich analysis to most of the statements in the Hustler article, we must examine more closely those four statements which appear more likely to be objectively capable of proof or disproof. As we examine these four statements, we are mindful of the warning that we must “not engage, without bearing clearly in mind the context before us, in a Talmudic parsing of a single sentence or two, as if we were occupied with a philosophic enterprise or linguistic analysis.” Ollman, 750 F.2d at 991.

The four statements are: Dworkin is a “lesbian”; when Indianapolis contemplated an antipomography ordinance co-authored by her, supporters asked her to “stay away for fear her repulsive presence would kill it”; Dworkin “advocates bestiality, incest and sex with children”; and Dworkin initiated a “nuisance suit” against Hustler. We consider these statements in the light of Dworkin’s legal burden of having to prove with convincing clarity not only the falsity of the statements, but also that Hustler uttered them with knowledge of the falsity or in reckless disregard for the truth. As shall be seen, Dworkin has not satisfied her burden in this summary judgment setting.

Hustler has provided Dworkin’s own writing to support its statement that she is a lesbian.¹⁴ Neither in her argument before the trial court nor in her argument before this court has Dworkin challenged this particular statement. Thus, she has failed to carry her burden of proof in this instance.

To bolster the statement that supporters of the Indianapolis ordinance asked Dworkin to stay away for fear her repulsive presence would kill it, Hustler provided two pieces of evidence. The first was an article from the Village Voice entitled, Censorship in the Name of Feminism. This article describes the attempt to pass the antipornography ordinance. It reads:

Indianapolis, though, is not Minneapolis. When Mayor Hudnut heard of the Dworkin/MacKinnon bill at a Republican conference, he didn’t think of it as a measure to promote feminism, but a weapon in the war on smut. He recruited City-County Councilmember Beulah Coughenour — an activist in the Stop ERA movement-to-introduce the law locally.

Coughenor’s first smart move was to hire MacKinnon but not Dworkin as a consultant to the city in developing the legislation. * * * MacKinnon is * * * “respectable.” * * * Of the law’s coauthors, she was most likely to be accepted by Indianapolis’s conservative city officials. Dworkin’s style would not have gone over in Indianapolis — there are no crowds of anti-porn feminists to galvanize into action, while there are innumerable tight-laced conservatives to be alarmed by the feverish pitch of Dwor-kin’s revival-style speeches, not to mention her overalls and unruly appearance.

Hustler also provided a New York Times article about the Indianapolis ordinance entitled, A Feminist Offensive Against Exploitation. Included in the article was the following statement: “In Indianapolis, where many of the ordinance’s proponents deemed Miss Dworkin too radical for the conservative community, Professor Mac-Kinnon was brought in as a consultant

It is true that neither of these two articles on which Hustler relies directly states that supporters of the ordinance actually asked her to “stay away.” It is clear to us, however, that the gist, the sting, the hurt of the articles and Hustler’s statement based on them was that she was not hired as a consultant because it was felt her style would alarm the conservative supporters of the ordinance. The statement was substantially true. As this court recognized in Tschirgi v. Lander Wyoming State Journal, 706 P.2d 1116, 1120-21 (Wyo.1985), it is sufficient to show that the imputation is substantially true. See also Smolla, supra, § 5.08-.11.

It may also be said Hustler drew an inference from the article that Dworkin was asked to “stay away.” Assuming that the inference drawn is false, Dworkin still must establish that it was drawn with actual malice. Dworkin fails to point to evidence of malice other than her statement that malice may be inferred from the character and content of the publication alone. Particularly in a case such as this, where Hustler reached an inference or interpretation from reputable source material, a mere inference of malice is insufficient. Plaintiff must show that the interpretation made was reached maliciously. Malice must be proved, because “punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. * * * The First Amendment requires that we protect some falsehood in order to protect speech that matters.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-41, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805-06 (1974).

We turn next to Hustler’s accusation that Dworkin advocates bestiality, incest and sex with children. Here again, Hustler provided source material for its statement from Dworkin’s own writings. Hustler provided the trial court with a chapter entitled, Androgyny: Androgyny, Fucking and Community, from Dworkin’s book, Woman Hating. In this chapter, Dworkin describes a model society in which “redefine[d] human sexuality” transforms “human relationships and the institutions which seek to control that relationship.” She states that in androgynous community, “human and other-animal relationships would become more explicitly erotic.” She advocates “destruction of the incest taboo” in order to develop “cooperative human community based on the free-flow of natural androgynous eroticism.” Finally, she states that children have “every right to live out their own erotic impulses” and that the distinctions between children and adults would disappear as androgynous community develops.

Dworkin argues that her book merely discusses these practices rather than advocates them. This does not resolve the issue. Assuming that her claim is correct, since the book itself is not mentioned in the Hustler article, the question of fact to be resolved is not whether her book truly advocates these practices, but whether Hustler’s interpretation of Dworkin’s work as advocacy rather than description is “false” and was made with malice. Again, Dwor-kin has failed to show that the interpretation was reached maliciously.

On the subject of a critic’s interpretation of another’s writings, it has been said:

[CJommentary on another’s writing was considered a privileged occasion at common law and therefore received the benefit of the fair comment doctrine. When a critic is commenting about a book, the reader is on notice that the critic is engaging in interpretation, an inherently subjective enterprise, and therefore realizes that others, including the author, may utterly disagree with the critic’s interpretation. The average reader further understands that because of limitations of space, not to mention those limitations imposed by the patience of the prospective audience, the critic as a practical matter will be able to support his opinion only by rather truncated quotations from the book or work under scrutiny. The reader is thus predisposed to view what the critic writes as opinion. In this context, courts have rightly been wary of finding statements to be defamatory, unless the statements misquote the author, put words into the author’s mouth or otherwise clearly go beyond the realm of interpretation.

Ollman, 750 F.2d at 988. See also, Smolla, supra, § 6.12[7].

We believe that when dealing with interpretation of a literary work, we must be especially careful to guard the critic’s right to express his opinion about the meaning of the work. Any author who places a book in the marketplace of ideas makes his work subject to criticism. Dworkin’s book itself reinterprets fairy tales from a feminist perspective. Who is to say which interpretation is “true” and which “false”?

Furthermore, the United States Supreme Court has allowed latitude for the interpretation of ambiguous documents where a claim of libel is made. In Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), the Court rejected the concept that a faulty interpretation of an ambiguous document could give rise to a claim for libel. In Pape, Time Magazine had erroneously reported that the United States Commission on Civil Rights had accused the plaintiff, a public official, of police brutality. Time misinterpreted a Commission report to say that the Commission had made the accusation; in fact, the Commission was only reporting allegations made by others. The Supreme Court stated that Time’s omission of the word “alleged” when describing the incident of police brutality “amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities. The deliberate choice of such an interpretation, although arguably reflecting a misconception, was not enough to create a jury issue of ‘malice’ under New York Times.” Pape, 401 U.S. at 290, 91 S.Ct. at 639, 28 L.Ed.2d at 53.

The United States Supreme Court recently stated concerning Pape that “[a] fair reading of our opinion is that the defendant did not publish a falsification sufficient to sustain a finding of actual malice.” Masson v. New Yorker Magazine, — U.S. —, —, 111 S.Ct. 2419, 2434, 115 L.Ed.2d 447, — (1991). The same is true in this case. Hustler’s interpretation of Dworkin’s work simply does not create an issue of malice for the jury.

Finally, we arrive at a statement which is difficult to classify. It has elements of either fact or hyperbole, depending on how it was used. Hustler accused Dworkin of filing a “nuisance suit” against Hustler. We have not located any authoritative definition of a “nuisance suit,” but in the most narrow sense it appears to refer to a suit which the plaintiff knows is not well-founded in the law, but which is brought to browbeat the defendant into paying nominal damages rather than incurring legal fees and costs. A “nuisance suit” may also have a rhetorical meaning, however. In a rhetorical sense, a “nuisance suit” may be one which the defendant finds inconvenient or annoying to fight and which he feels confident the plaintiff will lose. When a litigant without legal training refers to a suit brought against him as a “nuisance suit,” it is difficult to know whether he means that the suit is a nuisance in the narrow, technical sense or in a broader, rhetorical sense. In the rhetorical sense, calling a suit a “nuisance” should be viewed as expressing an opinion which cannot be proved by objective means. Even if a court rules for the plaintiff, that may not change the defendant’s opinion that the suit was frivolous. The First Amendment protects expression of this sort of opinion. Dworkin had the burden of establishing that “nuisance suit” was meant in the narrow, technical sense. She has pointed to nothing which could satisfy that requirement. See Camer v. Seattle Post Intelligencer, 45 Wash.App. 29, 723 P.2d 1195, 1200-02 (1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d 677 (court held that a media defendant’s attributing nuisance suits to a plaintiff did not constitute actionable libel). See also Waldo v. Journal Co., 45 Wis.2d 203, 172 N.W.2d 680 (1969). There, the Wisconsin Supreme Court affirmed the trial court’s dismissal of plaintiffs’ libel complaint which alleged the defendant’s use of the term “nuisance suit” to describe the plaintiffs’ taxpayers’ suit against the city was defamatory. Agreeing with the trial court that the term is an expression of opinion of the writer about the suit, namely, that he did not think it had great merit, the Supreme Court said,

[t]o import any defamatory meaning to these words would result in a strained and unnatural construction and give effect to innuendoes that are neither apparent directly from the language nor arise by clear implication. Nothing in this language could reasonably be construed as harming the reputation of the plaintiffs, lowering them in the estimation of the community, or deterring third persons from associating or dealing with them.

Waldo, 172 N.W.2d at 684.

In the broader sense, there was some justification for Hustler to believe that it would prevail in Dworkin v. Hustler, and that the suit was a “nuisance.” The Ninth Circuit Federal Court of Appeals said the following in its opinion:

Attorneys [for Hustler] have requested double costs and attorneys’ fees pursuant to Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1912. We have “discretion to award attorney’s fees and costs as a sanction against a frivolous appeal. An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit.” DeWitt v. Western Pac. R.R. Co., 719 F.2d 1448, 1451 (9th Cir.1983).

We denied a similar request made by Hustler in Leidholdt v. L.F.P., Inc., 860 F.2d 890, 895-96. Consequently, sanctions would be inappropriate in this appeal, which was filed under circumstances substantially similar to those of Leidholdt. However, the arguments made in this case have now been rejected by this court in Leidholdt, Ault, and in this case. Should litigants raise similar contentions in subsequent cases, the courts hearing those cases may consider in the first instance whether sanctions are appropriate.

Dworkin v. Hustler, 867 F.2d at 1200-01 (emphasis added).

In summary, we have applied the appropriate Milkovich analysis to the statements of and pertaining to Dworkin. We hold that neither the statements considered individually nor the article considered as a whole constitute actionable defamation under controlling First Amendment law.

4. Good motives and for justifiable ends.

There remains one further point asserted by Dworkin which we choose to address. She claims that under the language “the truth, when published with good intent and [for] justifiable ends, shall be sufficient defense,” as found in Wyo. Const, art. 1, § 20, these media defendants bear the burden of proving that the statements, even if “true” or constitutionally protected, were published with good motives and for justifiable ends. Again regrettably, she pursues this assertion in the same manner as she pursued her other contention that the subject constitutional provision precluded summary judgment in a libel action. Her assertion lacks constitutional analysis, legal authority, and cogent argument.

We have carefully studied New York Times, Butts, and the subsequent United States Supreme Court cases that have consistently adhered to that doctrine since first announced in 1964. In particular, we find Garrison most informative on the point Dworkin raises. In that case, the Court applied its New York Times rule and struck down a Louisiana criminal libel statute which, like the language of this state’s free speech/libel constitutional provision, conditioned the defense of truth on the presence of good motives and justifiable ends. Where the challenged statements criticize public officials or public figures in matters of public concern, “the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of the truth.” Garrison, 379 at 73, 85 S.Ct. at 215, 13 L.Ed.2d at 132. Consequently, “[t]ruth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.” Garrison, 379 U.S. at 74, 85 S.Ct. at 216, 13 L.Ed.2d at 133.

The Illinois Supreme Court adopted the Garrison approach in a civil libel action in Farnsworth v. Tribune Co., 43 Ill.2d 286, 253 N.E.2d 408, 410 (1969). There, the court held that the “good motives and for justifiable ends” language of its free speech/libel constitutional provision was “incompatible with the United States Supreme Court’s interpretation of the scope of the first amendment guarantees of the Federal Constitution.” See also, People v. Heinrich, 104 Ill.2d 137, 83 Ill.Dec. 546, 550-555, 470 N.E.2d 966, 970-71, 68 A.L.R.4th 1003 (1984).

A few years later the Pennsylvania Supreme Court, in a criminal libel action, relied on New York Times and Garrison to hold a similar provision in the Pennsylvania Constitution repugnant to the First Amendment of the United States Constitution. Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626, 632 (1972).

As recognized in our state constitution,¹⁵ the United States Constitution is the supreme law of the land. We hold, therefore, that the phrase “when published with good intent and [for] justifiable ends” of Wyo. Const, art. 1, § 20, is repugnant to the guarantees of the First Amendment of the United States Constitution in libel actions in which the New York Times/Butts standard applies to public figures who have been criticized by a media defendant regarding matters of public concern. Consequently, the media defendants in this case do not bear the burden Dworkin would have them assume.

We affirm the trial court’s order granting summary judgment against all of the plaintiffs on all of the counts in the complaint.

APPENDIX A

Interpretation of State Constitutions

Judith Hession, Comment, Rediscovering State Constitutions for Individual Rights Protection — Civil, 37 Baylor L.Rev. 463 (1985)

Dorothy T. Beasley, The Georgia Bill of Rights: Dead or Alive? 34 Emory L.J. 341 (1985)

The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324-1502 (1982)

Earl M. Maltz, False Prophet — Justice Brennan and the Theory of State Constitutional Law, 15 Hastings Const. L.Q. 429 (1988)

J. Skelly Wright, In Praise of State Courts: Confessions of a Federal Judge, 11 Hastings Const. L.Q. 165 (1984)

Ronald K.L. Collins, Reliance on State Constitutions — Away From a Reactionary Approach, 9 Hastings Const. L.Q. 1 (1981)

George Deukmejian & Clifford K. Thompson, Jr., All Sail and No Anchor — Judicial Review Under the California Constitution, 6 Hastings Const. L.Q. 975 (1979).

Lawrence M. Newman, Note, Rediscovering the California Declaration of Rights, 26 Hastings L.J. 481 (1974)

Robert F. Utter & Sanford E. Pitler, Speech, Presenting a State Constitutional Argument: Comment on Theory and Technique, 20 Ind.L.Rev. 635 (1987)

Steve McAllister, Comment, Interpreting the State Constitution: A Survey and Assessment of Current Methodology, 35 Kan.L.Rev. 593 (1987)

Robert B. Keiter, An Essay on Wyoming Constitutional Interpretation, 21 Land & Water L.Rev. 526 (1986)

Glen S. Goodnough, Comment, The Primacy Method of State Constitutional Deci-sionmaking: Interpreting the Maine Constitution, 38 Me.L.Rev. 491 (1986)

John Sunquist, Construction of the Wisconsin Constitution — Recurrence to Fundamental Principles, 62 Marq.L.Rev. 531 (1979)

William F. Swindler, State Constitutions for the 20th Century, 50 Neb.L.Rev. 577 (1970)

William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions As Guardians of Individual Rights, 61 N.Y.U.L.Rev. 535 (1986)

Robert Vogel, Sources of the 1889 North Dakota Constitution, 65 N.D.L.Rev. 331 (1989)

James E. Leahy, The Constitution is What the Judges Say It is, 65 N.D.L.Rev. 491 (1989)

Don S. Willner, A Second Look at Constitutional Interpretation in a Pioneer and Populist State, 67 Or.L.Rev. 93 (1988)

Ken Gormley, State Constitutions and Criminal Procedure: A Primer for the 21st Century, 67 Or.L.Rev. 689 (1988)

Stewart G. Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L.Rev. 707 (1983)

Peter P. Miller, Note, Freedom of Expression Under State Constitutions, 20 Stan. L.Rev. 318 (1968)

Herbert P. Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U.L.Rev. 887 (1980)

The Emergence of State Constitutional Law, 63 Tex.L.Rev. 959 (1985)

Justice Hans A. Linde, First Things First: Rediscovering the States’ Bill of Rights, 9 U.Balt.L.Rev. 379 (1980)

Justice Robert F. Utter, The Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment, 8 U.Puget Sound L.Rev. 157 (1985)

Justice Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 491 (1984)

Monrad G. Paulsen, State Constitutions, State Courts and First Amendment Freedoms, 4 Vand.L.Rev. 620 (1951)

Robert Force, State “Bill of Rights”: A Case of Neglect and the Need for a Renaissance, 3 Val.U.L.Rev. 125 (1969)

Maurice Kelman, Foreword: Rediscovering the State Constitutional Bill of Rights, 27 Wayne L.Rev. 413 (1981)

Don S. Willner, Constitutional Interpretation in a Pioneer and Populist State, 17 Williamette L.Rev. 757 (1981)

Robert F. Williams, State Constitutional Law Processes, 24 Wm. & Mary L.Rev. 169 (1983)

Junaid H. Chida, Comment, Rediscovering the Wisconsin Constitution: Presentation of Constitutional Questions in State Courts, 1983 Wis L.Rev. 483 (1983)

Linda B. Matarese, Other voices: The Role of Justices Durham, Kaye, and Abraham-son in Shaping the “New Judicial Federalism,” 2 Emerging Issues St. Const. Law 239 (1989)

David Schuman, Advocacy of State Constitutional Law Cases: A Report from the Provinces, 2 Emerging Issues St. Const. Law 275 (1989)

1 . These defendants will frequently be referred to in the singular as "Hustler”: L.F.P., INC., a California corporation, also sometimes designated as LFP, Inc., L.F.P., Inc., a California corporation d/b/a Larry Flynt Publications; Hustler Magazine, Inc., a California corporation; Larry Flynt, a citizen of California; The Conservator-ship of Larry Flynt, L.A. Superior Court # P688238, Jimmy Flynt, Conservator; Althea Flynt; Flynt Subscription Company, Inc., a Nevada corporation; Island Distributing Company, Ltd., a B.W.I. company; LFZ, Ltd., a B.W.I. company; Flynt Distributing Company, Inc., a California corporation; Inland Empire Periodicals, an Oregon corporation; Park Place Market Inc., a Wyoming corporation.

2 . Freedom of speech and press; libel; truth a defense. — Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right, and in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under the direction of the court.

Wyo.Const. art. 1, § 20.

3 .“[F]reedom of speech and of the press — which are protected by the first amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the fourteenth amendment from impairment by the states.” Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138, 1145 (1925).

4 .Justice Robert F. Utter of the Washington Supreme Court has co-authored a particularly helpful article for the practicing lawyer on formulating and presenting a state constitutional argument. See Robert F. Utter and Sanford E. Pitler, Presenting a State Constitutional Argument: Comment on Theory and Technique, 20 Ind.L.Rev. 635-77 (1987). See Appendix A to this opinion for a comprehensive, but not exhaustive, list of law review articles on the subject of interpretation of state constitutions.

5 . Oil, Chemical & Atomic Workers Inti, 748 P.2d 283 (Wyo.1987); Williams v. Blount, 741 P.2d 595 (Wyo.1987); MacGuire v. Harriscope Broadcasting Co., 612 P.2d 830 (Wyo.1980); McMurry v. Howard Publications, Inc., 612 P.2d 14 (Wyo. 1980); Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo.1976); Phifer v. Foe, 443 P.2d 870, 41 A.L.R.3d 1078 (Wyo.1968).

6 . Colorado, Mississippi, Missouri, and Ohio. See Spriggs, 63 Wyo. at 429-37, 182 P.2d at 805-OS.

7 . Idaho:

Constitution ratified November 5, 1889. Idaho admitted to the Union, July 3, 1890; the constitution became effective the same day.

Montana:

Constitution ratified October 1, 1889. Montana admitted to the Union, November 8, 1889; the constitution became effective the same day.

North Dakota:

Constitution ratified October 1, 1889. North Dakota admitted to the Union, November 2, 1889; the constitution became effective the same day.

South Dakota:

Constitution ratified October 1, 1889. South Dakota admitted to the Union, November 2, 1889; the constitution became effective the same day.

Washington:

Constitution ratified October 1889. Washington admitted to the Union, November 11, 1889; the constitution became effective the same day.

Charles Kettleborough, Ph.D., The State Constitutions (1918).

8 . S.D.Const. art. 6, § 5:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published, with good motives and for justifiable ends, shall be a sufficient defense. The jury shall have the right to determine the facts and the law under the direction of the court.

9 . Mont.Const. art. II, § 7:

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel, the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.

10 . Billis v. State, 800 P.2d 401, 413-14 (Wyo.1990).

12 . See Mills v. Reynolds, 837 P.2d 48, 68-70 (Wyo. 1992) (Golden, J., dissenting, for a discussion of the origins and meaning of Wyo.Const. art. 1, § 8).

11 . The First Amendment states, in pertinent part: "Congress shall make no law * * * abridging the freedom of speech, or of the press* * *."

13 . Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 772, 106 S.Ct. 1558, 1561, 89 L.Ed.2d 783, 790 (1986) (quoting New York Times v. Sullivan, 376 U.S. at 272, 84 S.Ct. at 721, 11 L.Ed.2d at 701, 95 A.L.R.2d 1412 (1964)).

14 . The writing appeared in Volume 4, number 2, the Second Wave, and is entitled, "What is Lesbian Pride.” At the end of the writing, the reader is informed that it was delivered "at the rally for Lesbian Pride Week, Central Park, June 28, 1975 * * * sponsored by Lesbian Feminist Liberation.”

15 . Wyo.Const. art. 1, § 37 and art. 21, § 24. See also Doe v. Burk, 513 P.2d 643 (Wyo.1973).