Torts II, Pages 897–900

Bindrim v. Mitchell

Court of Appeal of California, 1979

Facts:

Defendant Mitchell, a novelist, attended plaintiff's "nude therapy" program and agreed not to photograph or write about what went on. However, after the workshop was over, she wrote a novel based upon the technique. Plaintiff sued for libel.

Procedural History:

Jury found for plaintiff and the trial court granted a motion for new trial conditioned on plaintiff accepting a remittitur.

Issue:

Did defendant's novel libel plaintiff?

Defendant's Argument:

Even if it contains untrue statements, nothing in the novel identifies plaintiff as the main character.

Rules:

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    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.

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    Publication for purposes of defamation is sufficient when the publication is to only one person other than the person defamed.

Reasoning:

Whether a reasonable person would understand the main character to be plaintiff was a question for the jury, so their verdict must be upheld.

Judgment:

Affirmed as modified.

Concurring Opinion:

Jefferson: The First Amendment does not include the right to commit libel.

Dissenting Opinion:

Files: Defendant's fictional character is different from plaintiff in every way except for his nude therapy. The only people who have recognized whom it was based off of have been his patients, who only recognized him because of the nude therapy. Yet, plaintiff claims that these differences from him are libelous, and the court has inferred actual malice therefrom.

It does not matter that the publication is only published to one other person. Whether or not something is libelous still depends on what impression it would make upon an average citizen.

This will strongly discourage any novel critical of any occupational practice. This should be reversed.