Mink v. Knox

GORSUCH, Circuit Judge, concurring.¶

I agree with the court’s holding in all respects and join its reasoning with one minor exception. Even with respect to that exception, I agree with the result the court reaches, arriving at a common destination but only by a different route. The question the court confronts in Section II.B.1.a is whether probable cause existed to think that Mr. Mink’s column constituted “criminal libel.” I agree with my colleagues that the answer to that question must be “no.” I reach this conclusion for a simple and straightforward reason: this court has already said so. Pring v. Penthouse International, Ltd. , 695 F.2d 438 (10th Cir. 1982), established in this circuit the rule that the First Amendment precludes defamation actions aimed at parody, even parody causing injury to individuals who are not public figures or involved in a public controversy. Pring is binding on us, answers the probable cause question at issue, and is thus the beginning and end of my inquiry on that question. After noting Pring controls, the majority proceeds in Section II.B.1.a to offer a lengthy new defense of that decision. The majority may be right in all it says. But this isn’t beyond peradventure. As the majority notes, the Supreme Court has yet to address how far the First Amendment goes in protecting parody. Maj. Op. at 18. And reasonable minds can and do differ about the soundness of a¶

rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern. One might argue, for example, that such a rule unnecessarily constitutionalizes limitations that state tort law already imposes. See, e.g. , Stien v. Marriott Ownership Resorts, Inc. , 944 P.2d 374, 380 (Utah Ct. App. 1997) (“Under the law of defamation, ‘[a] parody or spoof that no reasonable person would read as a factual statement, or as anything other than a joke[,] . . . cannot be actionable as a defamation.'' (quoting Walko v. Kean College , 561 A.2d 680, 683 (N.J. Super. Ct. 1988))); Maj. Op. at 21-22 n.10 (citing state cases, some of which rest their holdings on common law, not constitutional, grounds). Or that such a rule may unjustly preclude private persons from recovering for intentionally inflicted emotional distress regarding private matters, in a way the First Amendment doesn’t compel. See, e.g. , Catherine L. Amspacher & Randel Steven Springer, Note, Humor, Defamation and Intentional Infliction of Emotional Distress: The Potential Predicament for Private Figure Plaintiffs , 31 Wm. & Mary L. Rev. 701 (1990); Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601, 662 (1990) (arguing that the First Amendment does not “absolutely protect[] all verbal means of intentionally inflicting emotional distress, all forms of racial, sexual, and religious insults, so long as the offending communications do not contain false factual statements”). Respectfully, I would avoid these thickets. Whoever has the better path through them, it’s better yet that we sidestep them altogether. To decide the case currently before us, it’s enough to say we are bound by Pring , and so was the district court. Beyond that, I would not venture. See PDK Labs., Inc. v. DEA , 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (“[I]f it is not necessary to decide more, it is necessary not to decide more.”). Accordingly, I join all but Section II.B.1.a of the court’s opinion and concur in its judgment.¶