Hustler Magazine v. Falwell

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), was a landmark decision of the United States Supreme Court ruling that the First and Fourteenth Amendments prohibit public figures from recovering damages for the tort of intentional infliction of emotional distress (IIED), if the emotional distress was caused by a caricature, parody, or satire of the public figure that a reasonable person would not have interpreted as factual.[1]

Hustler Magazine v. Falwell
Argued December 2, 1987
Decided February 24, 1988
Full case nameHustler Magazine and Larry C. Flynt, Petitioners v. Jerry Falwell
Citations485 U.S. 46 (more)
108 S. Ct. 876; 99 L. Ed. 2d 41; 1988 U.S. LEXIS 941; 56 U.S.L.W. 4180; 14 Media L. Rep. 2281
ArgumentOral argument
Case history
PriorJudgment for plaintiff, W.D. Va.; affirmed, 797 F.2d 1270 (4th Cir. 1986); rehearing denied, 4th Cir., 11-4-86; cert. granted, 480 U.S. 945 (1987).
SubsequentNone
Holding
Parodies of public figures which could not reasonably be taken as true are protected against civil liability by the First Amendment, even if intended to cause emotional distress. Fourth Circuit Court of Appeals reversed.
Court membership
Chief Justice
William Rehnquist
Associate Justices
William J. Brennan Jr. · Byron White
Thurgood Marshall · Harry Blackmun
John P. Stevens · Sandra Day O'Connor
Antonin Scalia · Anthony Kennedy
Case opinions
MajorityRehnquist, joined by Brennan, Marshall, Blackmun, Stevens, O'Connor, Scalia
ConcurrenceWhite
Kennedy took no part in the consideration or decision of the case.
Laws applied
U.S. Const. amend. I

In an 8–0 decision, the Court ruled in favor of Hustler magazine, holding that a parody ad published in the magazine depicting televangelist and political commentator Jerry Falwell Sr. as an incestuous drunk, was protected speech since Falwell was a public figure and the parody could not have been reasonably considered believable. Therefore, the Court held that the emotional distress inflicted on Falwell by the ad was not a sufficient reason to deny the First Amendment protection to speech that is critical of public officials and public figures.[1][2] Constitutional limits to defamation liability cannot be circumvented for claims arising from speech by asserting an alternative theory of tort liability such as IIED.

Background
Hustler's parody, depicted above, includes the unauthorized use of a publicity photograph of Falwell and a near-exact duplicate of the typesetting used in a concurrent Campari advertising campaign.[1]

Known for its explicit pictures of nude women, crude humor, and political satire, Hustler, a monthly magazine published by Larry Flynt, printed a parody ad in its November 1983 issue[3] that targeted Jerry Falwell, a prominent Christian fundamentalist televangelist and conservative political commentator.[4]

The parody was mimicking the popular advertising campaigns that Campari, an Italian liqueur, was running at the time that featured brief contrived interviews with various celebrities that always started with a question about their "first time", a double-entendre intended to give the impression that the celebrities were talking about their first sexual encounters before the reveal at the end that the discussion had actually concerned the celebrities' first time tasting Campari.[3]

The Hustler parody, created by writer Terry Abrahamson and art director Mike Salisbury,[5] included a headshot photo of Falwell and the transcript of a spoof interview, where, misunderstanding the interviewer's question about his first time, "Falwell" casually shares details about his first sexual encounter, an incestuous rendezvous with his mother in the family outhouse while they were both "drunk off our God-fearing asses on Campari." In the spoof interview, "Falwell" goes on to say that he was so intoxicated that "Mom looked better than a Baptist whore with a $100 donation," and that he decided to have sex with her because she had "showed all the other guys in town such a good time." When the interviewer asked if Falwell ever tried "it" again, once again mistaking the interviewer's intention, "Falwell" responded, "Sure... lots of times. But not in the outhouse. Between mom and the shit, the flies were too much to bear." Finally, the interviewer clarifies that he's asking if Falwell had tried Campari again, "Falwell" answered, "I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?"[6]

The ad carried a disclaimer in small print at the bottom of the page that said, "ad parody—not to be taken seriously", and the magazine's table of contents also listed the ad as: "Fiction; Ad and Personality Parody."[7]

Falwell sued Flynt, Hustler magazine, and Flynt's distribution company in the United States District Court for the Western District of Virginia for libel, invasion of privacy, and intentional infliction of emotional distress.[8] Before trial, the court granted Flynt's motion for summary judgment on the invasion of privacy claim, and the remaining two charges proceeded to trial. A jury ruled against Falwell on the libel claim, stating that the parody could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated."[9] On the claim of intentional infliction of emotional distress, the jury ruled in favor of Falwell and awarded him $150,000 in damages.[9]

Flynt appealed to the Fourth Circuit. The Fourth Circuit affirmed, rejecting Flynt's argument that the actual-malice standard of New York Times Company v. Sullivan, 376 U.S. 254 (1964) applied in cases of intentional infliction of emotional distress where the plaintiff was a public figure, as Falwell concededly was.[10] The New York Times standard focused too heavily on the truth of the statement at issue; for the Fourth Circuit, it was enough that Virginia law required the defendant to act intentionally. After the Fourth Circuit declined to rehear the case en banc, the U.S. Supreme Court granted Flynt's request to hear the case.

Opinion of the Court

"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions." The First Amendment envisions that the sort of robust political debate that takes place in a democracy will occasionally yield speech critical of public figures who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large". In New York Times, the Court held that the First Amendment gives speakers immunity from sanction with respect to their speech concerning public figures unless their speech is both false and made with "actual malice", i.e., with knowledge of its falsehood or with reckless disregard for the truth of the statement. Although false statements lack inherent value, the "breathing space" that freedom of expression requires in order to flourish must tolerate occasional false statements, lest there be an intolerable chilling effect on speech that does have constitutional value.

To be sure, in other areas of the law, the specific intent to inflict emotional harm enjoys no protection. But with respect to speech concerning public figures, penalizing the intent to inflict emotional harm, without also requiring that the speech that inflicts that harm to be false, would subject political cartoonists and other satirists to large damage awards. "The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events – an exploitation often calculated to injure the feelings of the subject of the portrayal". This was certainly true of the cartoons of Thomas Nast, who skewered Boss Tweed in the pages of Harper's Weekly. From a historical perspective, political discourse would have been considerably poorer without such cartoons.

Even if Nast's cartoons were not particularly offensive, Falwell argued that the Hustler parody advertisement in this case was so "outrageous" as to take it outside the scope of First Amendment protection. But "outrageous" is an inherently subjective term, susceptible to the personal taste of the jury empaneled to decide a case. Such a standard "runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience". So long as the speech at issue is not "obscene" and thus not subject to First Amendment protection, it should be subject to the actual-malice standard when it concerns public figures.

Clearly, Falwell was a public figure for purposes of First Amendment law. Because the district court found in favor of Flynt on the libel charge, there was no dispute as to whether the parody could be understood as describing facts about Falwell or events in which he participated. Accordingly, because the parody did not make false statements that were implied to be true, it could not be the subject of damages under the New York Times actual-malice standard. The Court thus reversed the judgment of the Fourth Circuit.[1]

Aftermath

Dramatization
Further information: The People vs. Larry Flynt

The People vs. Larry Flynt, a 1996 film directed by Miloš Forman starring Woody Harrelson as Flynt and Edward Norton as Flynt's lawyer Alan Isaacman features the case prominently. Burt Neuborne, a civil rights attorney, First Amendment advocate and law professor who contributed to Flynt's defense, reversed roles and played Jerry Falwell's lawyer in the film.

Flynt–Falwell relationship

After The People vs. Larry Flynt appeared, Falwell and Flynt began meeting in person to discuss philosophy. They visited colleges to publicly debate morality and the First Amendment, and exchanged Christmas cards and family photos. After Falwell's death in 2007 Flynt wrote, "the ultimate result was one I never expected ... We became friends".[11]

See also
Caselaw
Lists
Other

Notes
  1. Hustler Magazine v. Falwell, 485 U.S. 46 (1988). See also Deana Pollard Sacks, Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations, 120 Yale Law Journal Online 193 (2010).
  2. Taylor, Jr., Stuart (February 25, 1988), "Court, 8-0, Extends Right to Criticize Those in Public Eye", The New York Times
  3. James Castagnera; Philadelphia Inquirer (May 23, 2007). "Falwell vs. Flynt: See you in court". philly.com.
  4. Illinois Institute of Technology Chicago–Kent College of Law, Oyez Project (September 12, 2012). "HUSTLER MAGAZINE v. FALWELL". oyez.org.
  5. Chicago Reader, January 30, 1997, Adam Langer "Too Lewd for Larry"
  6. Kang, John M. (2012), "Hustler v. Falwell: Worst Case in the History of the World, Maybe the Universe", unlv.edu, University of Nevada, Las Vegas, William S. Boyd School of Law
  7. Warshaw, Robert G. (March 1, 1987). "Copyright Infringement: All is Fair as Falwell Hustles Flynt". lmu.edu. Loyola Law School.
  8. Louis Menand; The New York Review of Books (February 6, 1997). "It's a Wonderful Life". The New York Review of Books.
  9. University of Missouri–Kansas City School of Law. "Hustler Magazine and Larry C. Flynt, Petitioners v. Jerry Falwell". umkc.edu.
  10. Falwell v. Flynt, 797 F.2d 1270 (4th Cir. 1986).
  11. Flynt, Larry (2007-05-20). "The porn king and the preacher". Los Angeles Times. Retrieved 10 January 2015.

Further reading
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