Wednesday, September 29, 2004
Page 1
Court of Appeal Rules:
Calling Father ‘Pimp’ Not Defamatory Where True in the Past
By KENNETH OFGANG, Staff Writer/Appellate Courts
Filmmakers Allen Hughes and Albert Hughes Jr. did not defame their father by calling him a “pimp,” where evidence showed the senior Hughes had engaged in such activities in the past, the Court of Appeal for this district ruled yesterday.
The justices upheld a defense verdict in the suit by Albert Hughes Sr. against his sons—writers, directors and producers of such films as Menace II Society, Dead Presidents, From Hell, and the 1999 documentary American Pimp. The documentary featured several street pimps and the owner of a legal Nevada brother discussing their work.
The Hughes brothers, twins who are now 32 years old, began directing music videos professionally at 19 and later moved into motion pictures. Their father sued them after publication of an article in the October 2001 issue of Vanity Fair.
The article, by Veronica Webb—a friend of the brothers—discussed the brothers’ desire to broaden their range of filmmaking, and included the following quote.
“‘We wanted to send a message that we’re not hood filmmakers. We can do other films,’ says Allen. ‘Our mother is a lesbian. Our dad’s a pimp,’ says Albert. They both agree: ‘We’re interested in the underclass.’”
‘Pimptorial Arts’
Albert Hughes Sr. sued his sons, as well as Conde Nast Publications, which publishes the magazine. He claimed that the accusations of pimping, both in that article and in a USA Today article quoting Allen Hughes as saying his father “dabbled in the pimptorial arts,” were false and defamatory.
Conde Nast settled, but the case against the brothers went to trial.
Both brothers testified that their father told them in 1985 that he had run a prostitution operation for about three years, ending in 1981. He elaborated on that admission in 1987, they said, telling them that several women whom they knew in their childhood were prostitutes.
One of those women, they said, was Cherry Morton. Her son, Terrance Morton, testified that Albert Hughes Sr. was his father and was a pimp.
There was also evidence that other family members had told Allen Hughes his father was a pimp. Albert Hughes Sr. testified that he was not a pimp and never told his sons that he was.
During deliberations, the jury sent in a note that included the following:
“[W]e the jury...would like to know whether the fact that we believe that Al Sr. told his sons and that they, the boys, truly believed he was a pimp is enough to negate the fact that there was defamation, even if we do not necessarily believe Al Sr. truly was a pimp.”
Jury Instructions
After discussion, Los Angeles Superior Court Judge Elihu Berle reread standard jury instructions setting forth the elements of defamation and emphasizing that there can be no finding of defamation without proof of falsehood. Jurors brought back their defense verdict 40 minutes later.
On appeal, the plaintiff’s attorneys argued that even if he had been a pimp in the past, the statement “[o]ur dad’s a pimp,” was actionable as defamation because he was not a pimp when the statement was made.
Justice Richard Mosk, writing for the Court of Appeal, disagreed.
Mosk noted that there was no request for an instruction requiring the jury to make a finding as to whether the defendants were referring to the past or the present when they made the statements at issue, and that the plaintiff’s counsel did not object to testimony that he had been a pimp in the past.
In any event, Mosk said, the statement could reasonably be understood as referring to the past and could be found true on that basis.
He explained:
“Here, the jury, in finding the statement ‘Our dad’s a pimp’ not to be defamatory, may have understood the statement to mean that plaintiff had engaged in such activities in the past or that the statement is substantially true as a result of the past activities. The communication ‘[o]ur dad’s a pimp’ could reasonably be understood as meaning that he had at one time engaged in that activity. And a fact finder could reasonably conclude that the ‘gist or sting’ of the remark does not necessarily depend on when the plaintiff was a pimp. For example, if one had engaged in criminal acts in the past, that might support the assertion that the person is a criminal.”
Mosk cited Guccione v. Hustler Magazine, Inc. (2d Cir. 1986) 800 F.2d 298. The court held in that case that the publisher of Penthouse was not defamed by a 1983 article calling him an “adulterer,” even though he was not married at that time.
“The average reader would understand that term to include a man who unabashedly committed adultery for thirteen of the last seventeen years and whose adulterous behavior ended only because his wife ultimately divorced him,” the Guccione court reasoned.
Mosk acknowledged that Guccione’s adultery was more recent, as of publication of the alleged defamation, than Hughes’ alleged pimping. “Nevertheless, the discussion in Guccione suggests the court recognized that a statement that one is an adulterer does not have to be read as referring to the person’s conduct at the time of publication and that the past adulterous conduct can make the statement substantially true,” the justice wrote.
In an unpublished part of the opinion, Mosk said the trial judge did not abuse his discretion in rereading instructions in response to the jury’s question, rather than merely answering “No,” as urged by counsel for the plaintiff.
“The jury’s question was sufficiently ambiguous that a simple ‘yes’ or ‘no’ response would have been misleading and would not necessarily have answered the question correctly under the law,” Mosk explained. “The jury’s question is ambiguous as to whether the jury was saying it did or did not believe that defendants ‘truly believed’ their father was a pimp.”
If the jury concluded that the defendants “truly believed” their father was a pimp, it still would have had to determine whether the statement was made recklessly or negligently, a requirement covered by the repeated instructions, the justice noted.
Attorneys on appeal were Michael A. Weiss for the plaintiff and Richard H. Nakamura, Michael P. West, and PamelaA. Hill of Morris Polich & Purdy for the defendants.
The case is Hughes v. Hughes, B168913.
Copyright 2004, Metropolitan News Company