## Facts

- Philip Cioffari, an English professor, wrote a fictional story that Penthouse International, Ltd. published in *Penthouse* magazine.
- The story centers on “Charlene,” identified as the Miss Wyoming contestant in the Miss America pageant, and describes her thoughts as she prepares to perform her baton-twirling talent.
- The narrative includes explicit sexual scenes, including one in which Charlene performs oral sex on a football player and he levitates as a result.
- Levitation and other exaggerated elements are presented as part of a fantastical plot device, including suggestions that such events could “save the world.”
- Kimerli Jayne Pring, the actual Miss Wyoming contestant at the Miss America pageant, sued Penthouse International and Cioffari for defamation, alleging the story would be read to mean she engaged in the described sexual conduct.
- Defendants contended the publication was a spoof and complete fantasy not meant to be taken literally.
- A jury found for Pring, and the district court entered judgment on the verdict.
- Penthouse and Cioffari appealed.

## Issues

1. Whether the Penthouse story, viewed as a whole, could reasonably be understood as describing actual facts or real conduct of Kimerli Pring, as required for defamation consistent with the First Amendment.
2. Whether an appellate court must set aside a jury’s defamation verdict when the publication is, as a matter of law, not reasonably capable of a factual (rather than fantastical or humorous) meaning.

## Decision

- The Tenth Circuit reversed the judgment for Pring and directed that judgment be entered for Penthouse International and Cioffari.
- The court accepted that there was record support for the jury’s finding that the story could be taken as “of and concerning” Pring (identity) and did not disturb that finding.
- The court held that the story could not reasonably be understood as describing actual facts about Pring or actual events in which she participated.
- Because the publication did not amount to an actionable false statement of fact about Pring, the First Amendment barred defamation liability.

## Legal Principles

- Defamation liability requires a publication that is reasonably understood to assert false statements of fact about the plaintiff, not merely offensive, exaggerated, or humorous expression.
- Courts have a duty to make an independent legal judgment about whether challenged speech is reasonably capable of a factual meaning, even when a jury has found for the plaintiff.
- Satire, parody, and rhetorical hyperbole are protected when, in context, a reasonable reader would not take the publication as stating literal facts about a real person.
- “Of and concerning” (identification) and “statement of fact” are distinct requirements; even if readers may connect a character to a plaintiff, there is no libel if the content is plainly fantastical rather than factual.

## Conclusion

The Tenth Circuit set aside Pring’s jury verdict because, although readers might identify “Miss Wyoming” with Pring, the Penthouse story’s impossible and absurd events—such as levitation during explicit sexual acts on a national stage—meant that no reasonable reader would treat it as a factual account of Pring’s real conduct, so defamation liability could not stand under the First Amendment.


Pring v. Penthouse International, 695 F.2d 438 (1983)