Monday, March 11, 2013

25 Years Later: Hustler Magazine v Falwell - The Preacher, the Pornographer & the First Amendment

It seemed like the script for a movie - and indeed after all the smoke had cleared, it was a movie -- the academy award nominated film People vs. Larry Flynt.

The most notorious pornographer in the nation squared off against the sanctimonious self-appointed leader of the Christian coalition, the founder of Liberty University and the 700 Club television show.  Larry Flynt going to war with Jerry Falwell in front of the United States Supreme Court.

This is the twenty-fifth anniversary of the decision, and its legacy stands today as an important statement of the nature of freedom of speech and the protections of the First Amendment.  The decision seems even more important after last week's decision by the Supreme Court of Canada upholding punishment of speech that may expose the subject to "detestation and vilification."

The case involved a Campari ad parody in which the Falwell is portrayed has having his first sexual experience with his mother in an outhouse (after kicking out the goat), and portrayed as a drunken hypocrite who has to "get sloshed" before taking the pulpit.  
Falwell sued for invasion of privacy, defamation and intentional infliction of emotional distress.  The court dismissed the privacy claim.  At trial, the jury concluded that no one could interpret the ad as factual statements and found for Hustler on the defamation claim.

However the jury did find that Hustler intentionally inflicted emotional distress on Falwell and awarded a judgment of $200,000.  The 4th Circuit Court of Appeals affirmed.

In an 8-0 opinion authored by Chief Justice Rhenquist, the Supreme Court reversed.  The court held that the First Amendment provides breathing room for robust discussion.  No matter how the claim is structured, the First Amendment requires that liability must be premised only on false statements of fact made with constitutional malice.  Since the jury determined in the defamation claim that the statements made in the parody could not be taken as facts, there was no liability.

"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."

The entire point of the U.S. Supreme Court's decision in Hustler Magazine v. Falwell, 485 U.S. 46 (1988) is that writers and commentators do have the right to hold public figures up to "detestation and vilification" -- to dress them up in a cloak of absurdity to expose human foibles and layers of hypocrisy -- to in effect shout from the rooftop "The Emperor has no clothes!"

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