Hustler Magazine v. Falwell
Encyclopedia
In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46
(1988), the United States Supreme Court
held, in a unanimous 8–0 decision (Justice Anthony Kennedy
took no part in the consideration or decision of the case), that the First Amendment's
free-speech guarantee prohibits awarding damages to public figure
s to compensate for emotional distress intentionally inflicted
upon them.
Thus, Hustler
magazine's parody of Jerry Falwell
was deemed to be within the law, because the Court found that reasonable people would not have interpreted the parody
to contain factual claims, leading to a reversal of the jury verdict in favor of Falwell, who had previously been awarded $150,000 in damages by a lower court.
magazine has always been known for its explicit pictures of nude
women and for what many consider crude humor, the prominent fundamentalist Protestant
minister Jerry Falwell
objected to the parody ad the magazine printed in 1983 targeted at him, in which Falwell related having an incest
uous encounter with his mother in an outhouse
.
The satire at issue was a takeoff of an advertising campaign for Campari
, an Italian apéritif
. The real ads were tongue-in-cheek
interviews with celebrities talking about their "first time". The ads, which played off the double entendre
in the headline (“X talks about his first time”), initially appeared to discuss the star’s first sexual experience before revealing that the discussion actually concerned the subject's first time drinking Campari.
The Hustler parody featured a picture of Falwell, and a fictional "interview" in which "Falwell" describes his first sexual experience as occurring "with Mom" in an outhouse while both were "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," that he decided to have sex with his mother since she had "showed all the other guys in town such a good time", and that they had intercourse
regularly afterwards. Finally, when asked if he had tried Campari since, "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?" The ad carried a disclaimer in small print
at the bottom of the page, reading "ad parody—not to be taken seriously." The magazine's table of contents also listed the ad as "Fiction; Ad and Personality Parody."
Falwell sued Larry 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. 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 found in favor of Flynt on the libel claim, but found in favor of Falwell on the intentional infliction of emotional distress charge, and awarded Falwell $150,000 in damages.
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, applied in cases of intentional infliction of emotional distress where the plaintiff was a public figure, as Falwell concededly was. 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.
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.
, 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.
Lists
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1988), the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held, in a unanimous 8–0 decision (Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
took no part in the consideration or decision of the case), that the First Amendment's
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
free-speech guarantee prohibits awarding damages to public figure
Public figure
Public figure is a legal term applied in the context of defamation actions as well as invasion of privacy. A public figure cannot base a lawsuit on incorrect harmful statements unless there is proof that the writer or publisher acted with actual malice...
s to compensate for emotional distress intentionally inflicted
Intentional infliction of emotional distress
Intentional infliction of emotional distress is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same...
upon them.
Thus, Hustler
Hustler
Hustler is a monthly pornographic magazine aimed at men and published in the United States. It was first published in 1974 by Larry Flynt. It was a step forward from the Hustler Newsletter which was cheap advertising for his strip club businesses at the time. The magazine grew from a shaky start to...
magazine's parody of Jerry Falwell
Jerry Falwell
Jerry Lamon Falwell, Sr. was an evangelical fundamentalist Southern Baptist pastor, televangelist, and a conservative commentator from the United States. He was the founding pastor of the Thomas Road Baptist Church, a megachurch in Lynchburg, Virginia...
was deemed to be within the law, because the Court found that reasonable people would not have interpreted the parody
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
to contain factual claims, leading to a reversal of the jury verdict in favor of Falwell, who had previously been awarded $150,000 in damages by a lower court.
Background
While HustlerHustler
Hustler is a monthly pornographic magazine aimed at men and published in the United States. It was first published in 1974 by Larry Flynt. It was a step forward from the Hustler Newsletter which was cheap advertising for his strip club businesses at the time. The magazine grew from a shaky start to...
magazine has always been known for its explicit pictures of nude
Nudity
Nudity is the state of wearing no clothing. The wearing of clothing is exclusively a human characteristic. The amount of clothing worn depends on functional considerations and social considerations...
women and for what many consider crude humor, the prominent fundamentalist Protestant
Protestantism
Protestantism is one of the three major groupings within Christianity. It is a movement that began in Germany in the early 16th century as a reaction against medieval Roman Catholic doctrines and practices, especially in regards to salvation, justification, and ecclesiology.The doctrines of the...
minister Jerry Falwell
Jerry Falwell
Jerry Lamon Falwell, Sr. was an evangelical fundamentalist Southern Baptist pastor, televangelist, and a conservative commentator from the United States. He was the founding pastor of the Thomas Road Baptist Church, a megachurch in Lynchburg, Virginia...
objected to the parody ad the magazine printed in 1983 targeted at him, in which Falwell related having an incest
Incest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
uous encounter with his mother in an outhouse
Outhouse
An outhouse is a small structure separate from a main building which often contained a simple toilet and may possibly also be used for housing animals and storage.- Terminology :...
.
The satire at issue was a takeoff of an advertising campaign for Campari
Campari
Campari is an alcoholic apéritif obtained from the infusion of herbs and fruit in alcohol and water. It is a bitters characterized by its dark red color....
, an Italian apéritif
Aperitif
Apéritifs and digestifs are alcoholic drinks that are normally served with meals.-Apéritifs:An apéritif is usually served before a meal to stimulate the appetite. This contrasts with digestifs, which are served after a meal for the purpose of aiding digestion...
. The real ads were tongue-in-cheek
Tongue-in-cheek
Tongue-in-cheek is a phrase used as a figure of speech to imply that a statement or other production is humorously intended and it should not be taken at face value. The facial expression typically indicates that one is joking or making a mental effort. In the past, it may also have indicated...
interviews with celebrities talking about their "first time". The ads, which played off the double entendre
Double entendre
A double entendre or adianoeta is a figure of speech in which a spoken phrase is devised to be understood in either of two ways. Often the first meaning is straightforward, while the second meaning is less so: often risqué or ironic....
in the headline (“X talks about his first time”), initially appeared to discuss the star’s first sexual experience before revealing that the discussion actually concerned the subject's first time drinking Campari.
The Hustler parody featured a picture of Falwell, and a fictional "interview" in which "Falwell" describes his first sexual experience as occurring "with Mom" in an outhouse while both were "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," that he decided to have sex with his mother since she had "showed all the other guys in town such a good time", and that they had intercourse
Sexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
regularly afterwards. Finally, when asked if he had tried Campari since, "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?" The ad carried a disclaimer in small print
Small Print
Small Print is the debut album by English singer Sam Wedgwood, released in 2006. The album was mastered at Little Tardis Studios and clearly illustrates Sam’s varied, extensive musical tastes and influences, combining a modern acoustic vibe with some funky jazz beats, some dance numbers and real...
at the bottom of the page, reading "ad parody—not to be taken seriously." The magazine's table of contents also listed the ad as "Fiction; Ad and Personality Parody."
Falwell sued Larry Flynt
Larry Flynt
Larry Claxton Flynt, Jr. is an American publisher and the president of Larry Flynt Publications . In 2003, Arena magazine listed him as the number one on the "50 Powerful People in Porn" list....
, Hustler magazine, and Flynt's distribution company in the United States District Court for the Western District of Virginia
United States District Court for the Western District of Virginia
The United States District Court for the Western District of Virginia is a United States district court.Appeals from the Western District of Virginia are taken to the United States Court of Appeals for the Fourth Circuit The United States District Court for the Western District of Virginia (in...
for libel, invasion of privacy, and intentional infliction of emotional distress. Before trial, the court granted Flynt's motion for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
on the invasion of privacy claim, and the remaining two charges proceeded to trial. A jury found in favor of Flynt on the libel claim, but found in favor of Falwell on the intentional infliction of emotional distress charge, and awarded Falwell $150,000 in damages.
Flynt appealed to the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
. The Fourth Circuit affirmed, rejecting Flynt's argument that the actual-malice standard of New York Times Company v. Sullivan, applied in cases of intentional infliction of emotional distress where the plaintiff was a public figure, as Falwell concededly was. 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
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
, the U.S. Supreme Court granted Flynt's request to hear the case.
Court ruling
"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
Thomas Nast
Thomas Nast was a German-born American caricaturist and editorial cartoonist who is considered to be the "Father of the American Cartoon". He was the scourge of Boss Tweed and the Tammany Hall machine...
, who skewered Boss Tweed
Boss Tweed
William Magear Tweed – often erroneously referred to as William Marcy Tweed , and widely known as "Boss" Tweed – was an American politician most notable for being the "boss" of Tammany Hall, the Democratic Party political machine that played a major role in the politics of 19th century...
in the pages of Harper's Weekly
Harper's Weekly
Harper's Weekly was an American political magazine based in New York City. Published by Harper & Brothers from 1857 until 1916, it featured foreign and domestic news, fiction, essays on many subjects, and humor...
. 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
Public figure
Public figure is a legal term applied in the context of defamation actions as well as invasion of privacy. A public figure cannot base a lawsuit on incorrect harmful statements unless there is proof that the writer or publisher acted with actual malice...
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.
Dramatization
The People vs. Larry FlyntThe People vs. Larry Flynt
The People vs. Larry Flynt is a 1996 American biographical drama film directed by Miloš Forman about the rise of pornographic magazine publisher and editor Larry Flynt, and his subsequent clash with the law. The film stars Woody Harrelson, Courtney Love, and Edward Norton.The film was written by...
, a 1996 film directed by Miloš Forman
Miloš Forman
Jan Tomáš Forman , better known as Miloš Forman , is a Czech-American director, screenwriter, professor, and an emigrant from Czechoslovakia. Two of his films, One Flew Over the Cuckoo's Nest and Amadeus, are among the most celebrated in the history of film, both gaining him the Academy Award for...
starring Woody Harrelson
Woody Harrelson
Woodrow Tracy "Woody" Harrelson is an American actor.Harrelson's breakthrough role came in the television sitcom Cheers as bartender Woody Boyd...
as Flynt and Edward Norton
Edward Norton
Edward Harrison Norton is an American actor, screenwriter, film director and producer. In 1996, his supporting role in the courtroom drama Primal Fear garnered him a nomination for the Academy Award for Best Supporting Actor...
as Flynt's lawyer Alan Isaacman
Alan Isaacman
Alan L. Isaacman is an American lawyer primarily famous for serving as attorney for publisher Larry Flynt. His past clients also include Geraldo Rivera, Kathy Griffin, Rock Hudson and CBS, Inc. He lives in Beverly Hills with his wife and triplets.-Educational History:Isaacman went to Pennsylvania...
, features the case prominently.
See also
Caselaw- New York Times Co. v. SullivanNew York Times Co. v. SullivanNew York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...
, 376 U.S. 254 (1964) — "actual malice" standard for press reporting about public figure to be libel. - Gertz v. Robert Welch, Inc.Gertz v. Robert Welch, Inc.Gertz v. Robert Welch, Inc., 418 U.S. 323 , was a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals...
, 418 U.S. 323 (1974) — opinion is not libel; "actual malice" not necessary for defamation of private person if negligence is present. - Westmoreland v. CBSWestmoreland v. CBSWestmoreland v. CBS was a $120 million libel suit brought by former U.S. Army Chief of Staff General William Westmoreland against CBS Television for the televising of a documentary entitled The Uncounted Enemy: A Vietnam Deception, narrated by the investigative reporter, Mike Wallace. It was shown...
(1985) - Milkovich v. Lorain Journal Co.Milkovich v. Lorain Journal Co.Milkovich v. Lorain Journal Co., 497 U.S. 1 , was a United States Supreme Court case that rejected the argument that a separate opinion privilege existed against libel. It was seen by legal commentators as the end of an era that began with New York Times Co. v. Sullivan and continued with Gertz v...
, 497 U.S. 1 (1990) — existing law sufficient to protect free speech without recognizing opinion privilege against libel claims.
Lists
- List of United States Supreme Court cases
- List of United States Supreme Court cases by the Rehnquist Court
- Lists of United States Supreme Court cases by volume
- List of United States Supreme Court cases, volume 485
Further reading
- Stanley FishStanley FishStanley Eugene Fish is an American literary theorist and legal scholar. He was born and raised in Providence, Rhode Island...
, "Jerry Falwell's Mother", in his essay collection There's No Such Thing as Free Speech, and It's a Good Thing, Too, Oxford University Press, 1994.