First For a Reason

On March 22, 1988, the Supreme Court reversed a lower court’s judgment for Reverend Jerry Falwell against publisher Larry Flynt, noting the First Amendment protects publishers’ free speech and press rights from such claims made by public figures regarding materials that are clearly labeled or intended as parodies.

The celebrated Court decision pitted two icons of 1980’s politics–the late Larry Flynt and the late Jerry Falwell–against one another in a contest over tort liability and the First Amendment. Flynt was and is the publisher of Hustler magazine, an explicitly hard-core monthly publication. Falwell was the founder of a conservative Christian group, the Moral Majority, and Liberty University in Lynchburg, Virginia, the location of this year’s CPAC Conference.

Inside the front cover of its November 1983 issue, Hustler published what it characterized as a “parody.” It was a take-off on a national advertising campaign promoting Campari, an Italian liqueur; Campari ads had featured various celebrities talking about their “first time,” a deliberate double entendre. Feigning a real Campari ad, Hustler’s parody contains a photograph of Jerry Falwell and an interview with him about his “first time,” a drunken incestuous encounter with his mother in an outhouse. At the bottom of the page was the disclaimer: “ad parody — not to be taken seriously.” Further, the magazine’s table of contents listed the ad as “Fiction; Ad and Personality Parody.”

Falwell, relishing the gift of a test case against an ungodly foe, quickly sued Flynt to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. The U.S. District Court for the Western District of Virginia granted a directed verdict for Hustler on Falwell’s invasion of privacy claim. On the libel claim, the jury found against Falwell, concluding that the Hustler parody could not “reasonably be understood as describing actual facts about (Falwell) or actual events in which (he) participated.” However, the jury ruled for Falwell on the intentional infliction of emotional distress claim, and the Fourth Circuit Court of Appeals affirmed.

Thankfully for the sake of citizens, comics and journos coast to coast, the Supreme Court reversed the Fourth Circuit’s judgment. Chief Justice William H. Rehnquist wrote for a unanimous Court (Justice Anthony M. Kennedy did not participate, having joined the Court after this case was argued). The core of the Court’s decision is that, under the “actual malice rule” of New York Times Co. v. Sullivan (1964), the First Amendment protects publishers from claims for damages for intentional infliction of emotional distress made by public figures.

Opining with uncharacteristic amity, Rhenquist held “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.”

As we couldn’t have said it any better ourselves, it is here our lesson for Devin Nunes and his cow endeth.

Author: Bill Urich

A tail-end baby-boomer, Bill Urich was born in Cleveland to a grade school teacher and her Navy vet husband, and reared in Greater Detroit. Working his way through school primarily at night, Mr. Urich holds a Bachelor’s in Journalism, Phi Beta Kappa, and a Juris Doctorate from Wayne State University. In his legal career he has acted as an assistant state prosecutor, city attorney, special prosecutor, mediator, magistrate, private practitioner and mayor of Royal Oak, a large home-rule city in Michigan. Mr. Urich continues in private practice and municipal prosecution, is on faculty to DePaul University, pens regular contributions to political publications, and remains active in selected campaigns and causes related to labor, social and criminal justice. A father of three mostly-grown sons, he spends his precious free time on family, friends, the pursuit of happiness, beauty and truth, three rescue cats, and fronting the rock band Calcutta Rugs from behind the drum kit.