In November 1983, Hustler Magazine published a parody advertisement that would eventually come under fire and become the star of a 1988 landmark Supreme Court hearing. Hustler Magazine and Larry C Flynt, Petitioners v. Jerry Falwell was a United States Supreme Court case which pitted two men who were complete opposites in the 80’s American political spectrum, Jerry Falwell and Larry Flynt, against each other. This case barred public figures from being awarded compensations for emotional distress if the distress was caused by a parody or caricature intended to be satirical, that reasonable people would understand to be nonfactual (Smolla). The case’s popularity continues to grow and the precedent helps to clarify First Amendment principles.
Known for its pornographic content, offensive humor, and political satire, Hustler Magazine was no stranger to controversy. In their November 1983 edition of the magazine, writer Terry Abrahamson and artist Mike Salisbury created an ad parody titled ‘Jerry Falwell talks about his first time,’ which publisher Larry Flynt boldly printed (Smolla). Larry Flynt was the president of Larry Flynt Publications (LFP), which produced sexually graphic videos and magazines, most notably, Hustler. Reverend Jerry Falwell was a respected conservative Christian television evangelist, the on-air host of the “Old Time Gospel Hour,” and publicly condemned pornography. For years, Flynt raged against Falwell and other leaders of what the former derided as ‘organized religion’ (Kang). Flynt was eager to push the envelope on everything from sex to politics (Gutterman). The advertisement featured a satirical conversation between Reverend Falwell and a reporter. This was a spoof of a series of 1980’s Campari liquor advertisements, which interviewed celebrities about their ‘first time.’ The ad lead readers to believe celebrities were discussing their first time being intimate with another person, however by the end of the ad it is revealed that they were talking about their first-time drinking Campari. The Hustler parody of the advertisement featured a photo of Jerry Falwell, and included an interview where Falwell was depicted as a drunk, incestuous liar. He shared details about his ‘first time’, making statements such as “I never really expected to make it with Mom, but then after she showed all the other guys in town such a good time, I figured, ‘what the hell!’, “Mom looked better than a Baptist whore with a $100 donation”, and “Oh, yeah 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?” A small print was included at the bottom of the page to inform reader that it was an ‘ad parody-not to be taken seriously’, and the table of contents also informed readers that the depiction of Falwell was ‘fiction’ and ‘ad & personality parody’ (Hustler). Falwell sued Hustler, its publisher, Larry Flynt, and Flynt’s distribution company to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress (Smolla).
Prior to the trial, the circuit court dropped the charge of invasion of privacy, as they found no evidence to support the claim and therefor no grounds for the charge. Falwell failed to show, in accordance with Virginia state law, that Flynt has appropriated Falwell’s name or likeness for ‘advertising’ (Kang). Hustler’s parody was not an advertisement, just a spoof of one. The charges of libel and emotional distress went to trial. Unanimously, a jury found in favor of Flynt and Hustler regarding the libel charge. It was decided that reasonable individuals would not take the advertisement to be factual, and that the magazine’s freedom of speech was protected under the First Amendment. Even with the mention of Falwell’s name and photograph, the court ruled that the parody did not fall within meaning of the statute. Virginia required the plaintiff to show that the defendant had made an inaccurate factual representation regarding the plaintiff (Kang). The jury ruled in favor of Falwell, however, on the claim of intentional infliction of emotional distress, and awarded him $100,000 in compensatory damages and $100,000 in punitive damages (Hustler). Hustler Magazine and Flynt then appealed to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit Court upheld the jury verdict and found that while actual malice was required for a case of libel, emotional distress cases were allowed a much lesser standard (Hustler). They stated that the question was whether the ad was “sufficiently outrageous to constitute intentional infliction of emotional distress,” regardless of whether it was an opinion. The Supreme Court then granted review of the case. The Supreme Court disagreed with the appeals court, bringing in the importance of the First Amendment. They quoted their 1978 decision of FCC v. Pacifica Foundation, “The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that is a reason for according it constitutional protection” (Hustler). They compared the parody to a political cartoon, and rejected that the outrageousness of the parody should have any affect regarding its protection under the First Amendment. The court referenced previous case New York Times v Sullivan, a case that severely limited the rights of public figures to sue for libel due to the importance of the First Amendment (Hustler). The Supreme Court focused this case around the First Amendment rights of individuals, and referenced previous court decisions to ensure these rights were not violated.
The Supreme Court decision on February 24, 1988, was a unanimous 8-0 ruling in favor of Hustler Magazine and Flynt. The Justices presiding over the case were William Rehnquist, William Brennan Jr, Byron White, Thurgood Marshall, Harry Blackmun, John P Stevens, Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy, however Kennedy took no part in the decision of the case. Chief Justice Rehnquist analyzed the case in a brief eleven pages, delivering the opinion of the Court, endorsing free speech and a free marketplace of ideas. “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,’ with knowledge that the statement was false or with reckless disregard as to whether or not it was true” Public figures, he observed, have substantial capacity to shape events. This does not mean “that any speech about a public figure is immune from sanction in the form of damages.” Speech that contains genuine lies may be penalized in some circumstances, however the ad parody had no capacity to cause any harm other than the infliction of emotional distress. “Despite their sometimes caustic nature,… graphic depictions and satirical cartoons have played a prominent role in public and political debate… from the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them,” Justice Rehnquist stated. Justice Byron White delivered the concurring opinion, stating that the jury found no assertion of fact in the ad parody (Cornell). “I agree with the court that the judgment, which penalized the publication of the parody, cannot be squared with the First Amendment.” Under Virginia law, in an action for intentional infliction of emotional distress, a plaintiff must show that the defendant’s conduct is intentional or reckless; offends generally accepted standards of decency or morality; is causally connected with the plaintiff’s emotional distress; and caused emotional distress that was severe (Cornell). The Hustler decision was a reaffirmation of the principle that the Supreme Court was not to abridge speech solely because of its emotional impact (Smolla). The first amendment permits limiting speech that infringes on a ‘common law property right in one’s name’, or that interferes with ‘protected copyright interests’, or that interferes with ‘the orderly administration of the selective service system’ (Smolla). In those situations, speech is being regulated because it interferes with a legitimate social interest, not because of its emotional impact. Opinion is always protected under the first amendment, good or bad, and the protection does not dissolve when the opinion is disturbing (Smolla). Opinion is immune from liability regardless of how outrageous, and since the parody concerned a public figure, the offensive party can’t be held accountable.
The First Amendment to the Constitution states that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ This is arguably the most important amendment, as our rights as US citizens depends on it. Our nation was founded on the principles of freedom, freedom of religion, speech, press, assembly, and petition. The US Supreme Court referenced these principles when deciding upon the case of Hustler v. Falwell. Looking at it from this perspective, that the First Amendment is of utmost importance, it is tempting to agree that the Supreme Court made the right decision. After further thought, however, I began to consider the perspective of Falwell and his mother, as both were deeply affected by this case. Should Hustler Magazine, or any source, be entitled to publish a parody about you? If you’re a public figure, or are ‘intimately involved in the resolution of important public questions or, by reason of fame, shape events in areas of concern to society at large,’ then according to the Supreme Court, anyone can publish anything ‘satirical’ about you. The Hustler ruling made public figures more vulnerable to emotional distress and injury, as if they aren’t humans with emotions just as the rest of us are. Not only was Falwell affected by this case, but his mother, who wasn’t a public figure, was targeted. The advertisement spoof suggested that she would drunkenly have sex with her own son in an outhouse. Falwell’s mother never asked to be brought into the public sphere and be treated as a ‘public figure,’ however since her son became a television evangelist, she was also targeted. I feel as though this is unfair, and even if the law was upheld in regards to ‘public figures’ suing for emotional damages, Falwell’s mother should’ve received compensation for the trauma she faced as a result of Hustler’s publication. Civility is necessary for society. If we treated everyday individuals the way public figures are allowed, by law, to be treated, we would lose the protection of our personal dignity. An individual derives his sense of self-worth in large part from how others treat him, an axiom that has found support from sociologists (Kang). Does the First Amendment's freedom of speech protection extend to the making of blatantly offensive statements about public figures, resulting perhaps in their suffering emotional distress? While I agree wholeheartedly with the First Amendment, and that freedom of speech is of utmost importance, it also is reasonable for individuals to become offended by this speech and to seek compensation. I believe that public figures deserve the same protections as ordinary citizens to sue for emotional compensation when deemed just. Satirical writing can be comical and impactful without being malicious. Flynt’s publication about Falwell did not only attack his character, but also his career, and, most importantly, his mother. Justice Rehnquist asserted that because speech is offensive or disturbing, that gives it even more of a justification to be protected under the First Amendment, however he is only claiming this regarding public figures. Average citizens are still able to sue for emotional distress regarding emotional damages, so why are public figures being punished? Just because a person is well known among society does not mean they are any less susceptible to emotional distress. According to the National Alliance on Mental Illness, suicides claim the lives of approximately 30,000 lives every year in the United States. People of all backgrounds are at risk for suicide, regardless of social status. There are ways to express your discontent with a public figure without being malicious and spiteful in the process. There is a line between satire and intent to harm the other party. I believe that human beings deserve to be treated with dignity and that deviations from this call for justification. With this belief being stated, I also understand why the Supreme Court voted the way they did. Challenging the First Amendment rights of citizens would’ve made the Supreme Court seem like an enemy to the public, and to the Constitution. If they had voted in favor of Falwell, this could also have led to a slippery slope of lawsuits from public figures who felt that they have been personally victimized by a satirist or comedian. Instead, the outcome seemed to aggressively protect free speech in the First Amendment, and transformed Flynt into a First Amendment champion (Gutterman).
The 1988 Supreme Court Case Hustler Magazine and Larry C Flynt, Petitioners v. Jerry Falwell held that parodies of public figures which would not be reasonably taken as true are protected against civil liability by the First Amendment, even if intended to cause emotional distress. The Hustler case gives guaranteed protection under the First Amendment to comedians and satirists to make fun of public figures, regardless of the extent of the satire, without consequence. While I disagree with the outcome of the case, I understand the stance the Supreme Court felt they had to take in order to continue to protect free speech under the First Amendment. This case became the precedent for other First Amendment cases to follow. Since the case, more than 20 Supreme Court and hundreds of lower court opinions have applied and discussed the case, making it influential in helping the courts clarify protections on a range of speech issues (Gutterman).