## Facts

- Penthouse published “The Stoning of America” (Nov. 1978), an article about large-scale marijuana trafficking and the role of lawyers in drug operations.
- The article stated that Frank Marcone, a Philadelphia-area attorney, “contributed down payments of up to $25,000 on grass transactions” and that charges against him were dismissed because he “cooperated with further investigations.”
- Marcone had represented highly publicized outlaw motorcycle gangs and had been publicly associated with law-enforcement attention connected to those groups.
- In 1976, a federal grand jury indicted Marcone and others in a marijuana conspiracy; the indictment alleged Marcone paid $25,000 to purchase large quantities of marijuana.
- The government later withdrew the charges against Marcone without prejudice, citing difficulties tying him to the broader conspiracy; he was not reindicted.
- Marcone claimed Penthouse falsely portrayed him as an actual participant in marijuana transactions and as an informant whose charges were dropped for cooperation rather than for legal or evidentiary reasons.
- Marcone sued for defamation. The district court treated him as a private figure, instructed the jury on a negligence standard for liability, and the jury awarded compensatory and punitive damages.

## Issues

1. Whether Marcone was a limited-purpose public figure regarding a public controversy about organized crime, drug trafficking, and law-enforcement efforts, requiring proof of actual malice.
2. If so, whether the evidence showed by clear and convincing proof that Penthouse published with actual malice (knowledge of falsity or reckless disregard for truth).

## Decision

- The Third Circuit held Marcone was a limited-purpose public figure as to the subject matter of the article and the district court erred by using a private-figure negligence standard.
- Applying the actual-malice standard, the court held Marcone did not present clear and convincing evidence that Penthouse acted with actual malice.
- The court reversed the judgment for Marcone, eliminating both compensatory and punitive damages.

## Legal Principles

- A plaintiff becomes a limited-purpose public figure when a public controversy exists and the plaintiff voluntarily assumes a role of special prominence in that controversy, including through public associations and access to channels of communication.
- For limited-purpose public figures, defamation liability requires clear and convincing proof of actual malice: publication with knowledge of falsity or reckless disregard for truth.
- Reliance on official proceedings and law-enforcement sources, without evidence of subjective doubt or purposeful avoidance of the truth, generally does not establish actual malice.

## Conclusion

Because Marcone was a limited-purpose public figure with respect to a public controversy about crime and drug trafficking, he was required to prove actual malice; his failure to produce clear and convincing evidence of knowledge of falsity or reckless disregard required reversal of the defamation judgment.


Marcone v. Penthouse Int’l Mag. for Men, 754 F.2d 1072 (3d Cir. 1985)