First Amendment Friday 10 – Hustler V Falwell

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Happy Friday and welcome to the 10th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:

Originally posted at

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

First Amendment Friday 4 – Brandenbrug V Ohio

First Amendment Friday 5 – Bridges V California

First Amendment Friday 6 – Planned Parenthood V ACLA

First Amendment Friday 7 – New York Times V Sullivan

First Amendment Friday 8 – Butts V Curtis

First Amendment Friday 9 – Gertz v Welch Inc.

This week we will finish up the section of the syllabus on Defamation with kind of a fun one. It is Hustler Magazine v Jerry Falwell.

The Case;

Jerry Falwell a well known and outspoken preacher from the Religious Right filed suit against Hustler Magazine and Larry Flynt for libel, invasion of privacy and intentional infliction of emotional distress in Federal District Court.

The Facts;

In November 1983 Hustler Magazine published a parody of a Campari add campaign. In the Campari campaign celebrities would describe there “first time”. The first time was of course the first time they had Campari, but the add campaign used a lot of double entendre to make it seem as though the interview was about the first time the celebrities had sex.

In the Hustler parody, Mr. Falwell was the subject of the interview and the first time story was about him having drunken incestuous sex with his mother in an out house (funny but pretty harsh stuff). The parody further made it seem as though Mr. Falwell only preached when he was drunk.

In small print at the bottom of the page read a disclaimer “ad parody – not to be taken seriously”

In the table of contents of the magazine the for the page the parody was on there was an entry “Fiction; Ad and Personality Parody”

The Procedural History:

After evidence had been heard the District Court entered a verdict against Mr. Falwell for the invasion of privacy (this means they did not find enough evidence of the claim to send it to the jury).

The jury found for Mr. Flynt and Hustler on the libel claim, based on the idea there was no chance this “interview” was being presented as fact. There for it was not libelous.

The jury found for Mr. Falwell on the charge of intentional infliction of emotional pain. They awarded him $100,000 in compensatory damages and $50,000 each from Hustler Magazine and Mr. Flynt in punitive damages.

Mr. Flynt and Hustler appealed to the Fourth Circuit Court of Appeals on the grounds that New York Times v Sullivan required a standard of “actual malice” before damages for emotional distress could be levied. The Appellate Court while finding that Mr. Falwell did meet the standard for a “public person” under Butt’s v Curtis did not find that in a tort for emotional distress, instead of libel, it was not “actual malice” which should be the test applied from New York Times but “knowing or reckless conduct”. The Court found this ad parody reckless enough to meet that standard.

The Fourth Circuit also found that the argument of First Amendment protection since the jury found the parody to have not in any way been intended to describe actual facts, and was thus an opinion which is protected, unpersuasive. The Court found that this was irrelevant since the ad parody was so “outrageous” that it clearly constituted intentional infliction of emotional distress, which was the issue before the court.

Mr. Flynt appealed to the US Supreme Court and was granted a hearing.

The Legal Issue:

Do the First Amendment protections on speech prevent a State from allowing a public figure from recovering damages from a parody of him, if the parody is gross and offensive?

The Opinion

Chief Justice Rehnquist wrote for the unanimous Court. Justice Kennedy was not part of this decision.

Chief Justice Rehnquist starts with why it is important that any individual must be able to have the ability to offer his opinion, no matter how distasteful it may be or vulgar in its presentation. He quotes Justice Holmes from Abrams v US;

when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . .

He then makes the point that a robust debate of public topics is likely to create a situation were strong, even harsh and hurtful words are turned towards those who would influence any topic which is divisive in nature.

Chief Justice Rehnquist then writes:

Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times Co. v. Sullivan, (1964), we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”  False statements of fact are particularly valueless; they interfere with the truthseeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or effective. See Gertz, 418 U.S. at 340, 344, n. 9. But even though falsehoods have little value in and of themselves, they are “nevertheless inevitable in free debate,” id. at 340, and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted “chilling” effect on speech relating to public figures that does have constitutional value. “‘Freedoms of expression require “breathing space.”‘” Philadelphia Newspapers, Inc. v. Hepps, (1986) (quoting New York Times, supra, at 272). This breathing space is provided by a constitutional rule that allows public figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with the requisite level of culpability.

Here the Chief Justice is making the point that while there is no value in lies there is value in not suppressing them through the power of Law either criminal or civil. In fact to do so would, most likely, cause a weakening of our ability to have a robust debate on issues. The requirement of a free people to be able to discuss all points of view, even false and disgusting ones in order to have an open democracy means there most be some tolerance of these types of utterances. This is achieved by having the twin tests of falsity and culpability.

The Chief Justice then notes that Mr. Falwell’s attorney’s argue there is a State interest to have citizens protected from intentional emotional harm. The argument which the Court of Appeals agreed with was, since the intent was to cause emotional harm, and harm did in fact result, there is no Constitutional issue. It did not matter if the ad was true or false, or if it was an opinion or not. They further argue the State has a stronger interest in preventing harm (emotional in this case, but harm none the less) than the speaker does in being able to say what he likes about a public figure.

Justice Rehnquist then proceeds to swat this idea like a fly. He discusses the long history of political cartoons, particularly the cartoons of Thomas Nast, and his crusade against Boss Tweed. The point the Chief Justice makes is cartoons in this style are often cruel in their exaggeration of physical or emotional traits of the politicians they portray. This has a long and proud history in our nation and it has helped to shape us as a people. The fact these exaggerations are hurtful in no way out balances their place in the public discussion. To hold them open to suits by public figures would demolish the art and end their effectiveness forever.

The Chief Justice further writes:

Respondent (Falwell) contends, however, that the caricature in question here was so “outrageous” as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus 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.

Justice Rehnquist avoids a very sticky wicket there! If the Court had allowed a subjective test like “outrageousness” there would have been 1,000 years worth of suits filed the next day! Instead he sticks to the position of the Court in the past and requires that public persons must accept a higher level of ridicule by the nature of their position. He writes:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a “blind application” of the New York Times standard, see Time, Inc. v. Hill, (1967); it reflects our considered judgment that such a standard is necessary to give adequate “breathing space” to the freedoms protected by the First Amendment.  

Here it is clear that respondent Falwell is a “public figure” for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” App. to Pet. for Cert. C1. The Court of Appeals interpreted the jury’s finding to be that the ad parody “was not reasonably believable,”, and, in accordance with our custom, we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by “outrageous” conduct. But, for reasons heretofore stated, this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly reversed.

So there is it Citizens. The Rehnquist Court found that you can indeed make very cruel fun of a public figure, and they have to take it. The Dog has come to agree with this point of view more and more. Basically if you are going to be someone who stands up and says you know best how we should live, then you are not immune to those who disagree making fun of you. Sticks and Stones, etc.

This has no doubt lead to a coarsening of our public discourse but it has also helped prevent hypocrites from having it all there way. That is the Dog’s point of view, what is yours?

The floor is yours.

House keeping: As always much thanks to the Legal Information Institute for the Courts opinions. You can find today’s case, here

1 comment

  1. mean words?  

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