brief the following two cases into Issue, facts, rule, analysis, conclusion

1. Bindrim v. MitchellCourt of Appeal of California,

Second District, 1979.

hearing denied by California Supreme Court, 1979, cert. denied 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979),reh. denied 444 U.S. 1040, 100 S.Ct. 713, 62 L.Ed.2d 675 (1980).[Plaintiff, Paul Bindrim, a Ph.D. and licensed psychologist, used what he designated as a "nude marathon in group therapy as a means of helping people to shed their psychological inhibitions with the removal of their clothes." Defendant Gwen Davis Mitchell, a successful novelist, registered in Bindrim's nude-therapy program, telling him that she was participating for therapeutic reasons only, and signing a contract "not to take photographs, wrote articles or in any manner disclose who has attended the workshop or what has transpired." Shortly thereafter, she contracted with defendant Doubleday for a novel based on the nude-therapy technique. The novel was written and published under the title of Touching, with a principal character, Dr. Simon Herford, using the technique.Claiming that he was defamed by the depiction, plaintiff brought an action of libel against the two defendants. There was a jury verdict for the plaintiff in the trial court for substantial damages, and the court granted a motion for new trial conditioned on plaintiff's accepting a remittitur. Both plaintiff and the two defendants appealed.]Kingsley, Associate Justice. *** [Defendants] claim that, even if there are untrue statements, there is no showing that plaintiff was identified as the character Simon Herford, in the novel "Touching."[They] allege that plaintiff failed to show he was identifiable as Simon Herford, relying on the fact that the character in "Touching" was described in the book as a "fat Santa Claus type with long white hair, white sideburns, a cherubic rosy face and rosy forearms" and that Bindrim was clean shaven and had short hair. Defendants rely in part on Wheeler v. Dell Publishing Co., 300 F.2d 372 (7th Cir. 1962), which involved an alleged libel caused by a fictional account of an actual murder trial. The Wheeler court said (at p. 376):"In our opinion, any reasonable person who read the book and was in a position to identify Hazel Wheeler with Janice Quill would more likely conclude that the author created the latter in an ugly way so that none would identify her with Hazel Wheeler. It is important to note that while the trial and locale might suggest Hazel Wheeler to those who knew the Chenoweth family, suggestion is not identification. In [Levey v. Warner Bros. Pictures, 57 F.Supp. 40 (S.D.N.Y.1944),] the court said 963those who had seen her act may have been reminded of her by songs and scenes, but would not reasonably identify her."However, in Wheeler the court found that no one who knew the real widow could possibly identify her with the character in the novel. In the case at bar, the only differences between plaintiff and the Herford character in "Touching" were physical appearance and that Herford was a psychiatrist rather than psychologist. Otherwise, the character Simon Herford was very similar to the actual plaintiff. We cannot say, as did the court in Wheeler, that no one who knew plaintiff Bindrim could reasonably identify him with the fictional character. Plaintiff was identified as Herford by several witnesses and plaintiff's own tape recordings of the marathon sessions show that the novel was based substantially on plaintiff's conduct in the nude marathon.Defendant also relies on Middlebrooks v. Curtis Publishing Co., 413 F.2d 141 (4th Cir. 1969), where the marked dissimilarities between the fictional character and the plaintiff supported the court's finding against the reasonableness of identification. In Middlebrooks, there was a difference in age, an absence from the locale at the time of the episode, and a difference in employment of the fictional character and plaintiff; nor did the story parallel the plaintiff's life in any significant manner. In the case at bar, apart from some of those episodes allegedly constituting the libelous matter itself, and apart from the physical difference and the fact that plaintiff had a Ph.D., and not an M.D., the similarities between Herford and Bindrim are clear, and the transcripts of the actual encounter weekend show a close parallel between the narrative of plaintiff's novel and the actual real life events. Here, there were many similarities between the character, Herford, and the plaintiff Bindrim and those few differences do not bring the case under the rule of Middlebrooks. [C] There is overwhelming evidence that plaintiff and "Herford" were one. ***Defendants contend that the fact that the book was labeled as being a "novel" bars any claim that the writer or publisher could be found to have implied that the characters in the book were factual representations not of the fictional characters but of an actual nonfictional person. That contention, thus broadly stated, is unsupported by the cases. The test is whether a reasonable person, reading the book, would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described. [C] Each case must stand on its own facts. In some cases, such as Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6 (1970), an appellate court can, on examination of the entire work, find that no reasonable person would have regarded the episodes in the book as being other than the fictional imaginings of the author about how the character he had created would have acted. *** Whether a reader, identifying plaintiff with the "Dr. Herford" of the book, would regard the passages herein complained of as mere fictional embroidering or as reporting 964actual language and conduct, was for the jury. Its verdict adverse to the defendants cannot be overturned by this court. ***Defendants raise the question of whether there is "publication" for libel where the communication is to only one person or a small group of persons rather than to the public at large. Publication for purposes of defamation is sufficient when the publication is to only one person other than the person defamed. [C] Therefore [it is] irrelevant whether all readers realized plaintiff and Herford were identical.[The opinion also discusses whether the depiction was defamatory, the application of the "actual malice" test of New York Times v. Sullivan, infra page 987, the fact-opinion dichotomy, and damage issues.]The judgment, as modified on the motion for a new trial, is further modified as [to damages.] ***Otherwise the judgment is affirmed. Neither party shall recover costs on appeal.Jefferson, Associate Justice, concurring. *** The dissent finds error in the instruction given the jury on the issue of identification. The use of the word "reasonably" in the instruction dissipates the dissent's view that only one person was required to understand the defamatory meaning. If one person "reasonably" understood the defamatory character of the language used, it describes what readers generally would "reasonably" understand. I see no basis for the dissent's view that the instruction had the result of mulcting defendants for the exercise of their first amendment right to comment on the nude marathon. The first amendment right to comment does not include the right to commit libel. ***"Of course the fictional setting does not insure immunity when a reasonable man would understand that the fictional character was a portrayal of the plaintiff. 'Reputations may not be traduced with impunity, whether under the literary forms of a work of fiction or in jest.'" [C]Files, Presiding Justice (dissenting). *** Defendants' novel describes a fictitious therapist who is conspicuously different from plaintiff in name, physical appearance, age, personality and profession.Indeed the fictitious Dr. Herford has none of the characteristics of plaintiff except that Dr. Herford practices nude encounter therapy. Only three witnesses, other than plaintiff himself, testified that they "recognized" plaintiff as the fictitious Dr. Herford. All three of those witnesses had participated in or observed one of plaintiff's nude marathons. The only characteristic mentioned by any of the three witnesses as identifying plaintiff was the therapy practiced. ***Plaintiff's brief discusses the therapeutic practices of the fictitious Dr. Herford in two categories: Those practices which are similar to plaintiff's technique are classified as identifying. Those which are unlike 965plaintiff's are called libelous because they are false. Plaintiff has thus resurrected the spurious logic which Professor Kalven found in the position of the plaintiff in New York Times v. Sullivan, infra page 987. Kalven wrote: "There is revealed here a new technique by which defamation might be endlessly manufactured. First, it is argued that, contrary to all appearances, a statement referred to the plaintiff; then, that it falsely ascribed to the plaintiff something that he did not do, which should be rather easy to prove about a statement that did not refer to plaintiff in the first place. ***" Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 The Supreme Court Review 191, 199.Even if we accept the plaintiff's thesis that criticism of nude encounter therapy may be interpreted as libel of one practitioner, the evidence does not support a finding in favor of plaintiff.Whether or not a publication to the general public is defamatory is "whether in the mind of the average reader the publication, considered as a whole, could reasonably be considered as defamatory." [C]The majority opinion contains this juxtaposition of ideas: "Secondly, defendants' [proposed] instructions that the jury must find that a substantial segment of the public did, in fact, believe that Dr. Simon Herford was, in fact, Paul Bindrim *** was properly refused. For the tort of defamation, publication to one other person is sufficient."The first sentence refers to the question whether the publication was defamatory of plaintiff. The second refers to whether the defamatory matter was published. The former is an issue in this case. The latter is not. Of course, a publication to one person may constitute actionable libel. But this has no bearing on the principle that the allegedly libelous effect of a publication to the public generally is to be tested by the impression made on the average reader. ***From an analytical standpoint, the chief vice of the majority opinion is that it brands a novel as libelous because it is "false," i.e., fiction; and infers "actual malice" from the fact that the author and publisher knew it was not a true representation of plaintiff. From a constitutional standpoint the vice is the chilling effect upon the publisher of any novel critical of any occupational practice, inviting litigation on the theory "when you criticize my occupation, you libel me."I would reverse the judgment.

2. Terwilliger v. Wands

Court of Appeals of New York, 1858

Action for slander. The plaintiff proved by La Fayette Wands that the defendant asked him, Wands, what the plaintiff was running to Mrs. 969Fuller's so much for; he knew he went there for no good purpose; Mrs. Fuller was a bad woman, and plaintiff had a regular beaten path across his land to Fuller's; defendant said plaintiff went there to have intercourse with Mrs. Fuller, and that plaintiff would doo all he could to keep Mrs. Fuller's husband in the penitentiary so that he could have free access there. ***The only damages proved were that the plaintiff was prostrated in health and unable to attend to business after hearing of the reports circulated by the defendant. A motion for a nonsuit was sustained ***.Strong, J. The words spoken by the defendant not being actionable of themselves, it was necessary, in order to maintain the action, to prove that they occasioned special damages to the plaintiff. The special damages must have been the natural, immediate and legal consequence of the words. ***The special damages relied upon are not of such a nature as will support the action. *** It is injuries affecting the reputation only which are the subject of the action. In the case of slanderous words actionable per se, the law, from their natural and immediate tendency to produce injury, adjudges them to be injurious, though no special loss or damage can be proved. "But with regard to words that do not apparently and upon the face of them import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened." (3 Bl.Com. 124.) As to what constitutes special damages, Starkie mentions the loss of a marriage, loss of hospitable gratuitous entertainment, preventing a servant or bailiff from getting a place, the loss of customers by a tradesman; and says that in general whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient. ***It necessarily follows from the rule that the words must be disparaging to character, that the special damage to give an action must flow from disparaging it. *** In the present case the words were defamatory, and the illness and physical prostration of the plaintiff may be assumed, so far as this part of the case is concerned, to have been actually produced by the slander, but this consequence was not, in a legal view, a natural, ordinary one, as it does not prove that the plaintiff's character was injured. The slander may not have been credited by or had the slightest influence upon any one unfavorable to the plaintiff; and it does not appear that anybody believed it or treated the plaintiff any different from what they would otherwise have done on account of it. The cause was not adapted to produce the result which is claimed to be special damages. Such an effect may and sometimes does follow from such a cause but not ordinarily; and the rule of law was framed in reference to common and usual effects and not those which are accidental and occasional. ***970Where there is no proof that the character has suffered from the words, if sickness results it must be attributed to the apprehension of loss of character, and such fear of harm to character, with resulting sickness and bodily prostration, cannot be such special damage as the law requires for the action. The loss of character must be a substantive loss, one which has actually taken place. ***Judgment affirmed.