The landmark First Amendment decision in Hustler Magazine v. Falwell arose from a battle between Larry Flynt, colorful publisher of the pornography magazine Hustler, and the popular conservative televangelist, Reverend Jerry Falwell. Larry Flynt and Hustler ran an ‘‘advertisement parody’’ in which Jerry Falwell was depicted as endorsing Campari liqueur. The mock advertisement in crude language depicted Jerry Falwell as having had his first sexual experience with his mother in an outhouse in Lynchburg, Virginia. Falwell and his mother were made out to be drunken, incestuous hypocrites. The ad was labeled ‘‘ad-parody—not to be taken seriously,’’ and was indexed in the table of contents as ‘‘Fiction—Ad and Personality Parody.’’ Falwell sued Flynt in federal district court in Virginia for appropriation of his name and likeness, defamation, and intentional infliction of emotional distress. At the trial, the jury found that no reasonable person could have understood the ad as meant to describe actual facts about Reverend Falwell, and since the ad would not be understood as making actual factual allegations, it could not be ‘‘libel’’ within the traditional legal meaning of that term. The trial judge also dismissed the claim for appropriation of Falwell’s name or likeness, on the grounds that the appropriation was not done for ‘‘commercial purposes.’’ But the jury did return a victory for Falwell under a different legal theory, ‘‘intentional infliction of emotional distress,’’ awarding Falwell $100,000 in compensatory damages and $100,000 in punitive damages.
The case reached the U.S. Supreme Court. In an opinion written by Chief Justice Rehnquist, the Court struck down the jury verdict, holding that the crude parody was expression protected by the First Amendment. Chief Justice Rehnquist began his analysis with an essay on the purposes of the First Amendment. ‘‘At the heart of the First Amendment,’’ he wrote, ‘‘is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.’’ He then recognized the two principal functions of free speech, the self-fulfillment of the individual speaker, and the broader social search for enlightenment, observing that ‘‘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 Court has been particularly vigilant, he observed, to ensure that ideas remain free from governmentally imposed sanctions, because the ‘‘First Amendment recognizes no such thing as a ‘false’ idea.’’ Chief Justice Rehnquist capped off his introductory remarks by invoking one of the most sacred passages in the First Amendment tradition, the haunting appeal for tolerance by Justice Oliver Wendell Holmes in his dissent in Abrams v. United States (1919): ‘‘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 a 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.’’
If the marketplace of ideas was to be robust and wide open, the Supreme Court reasoned, it had to provide space for even the outrageous antics of characters such as Larry Flynt. The Court noted that in America the prevailing ethos is not to encourage people to enter the public arena by guaranteeing them shelter from caustic and virulent attack; it is rather to require as a cost of entering the public arena a certain toughening of the hide. Good but sensitive people may be discouraged in America from stepping forward into public life, but that is part of the price of an open society and a spirited democracy. In this nation, a public figure must be able to take as well as give. Public figures, observed Chief Justice Rehnquist, have a substantial capacity to shape events. One of the prerogatives of American citizenship is the right to criticize public persons and measures. And in this country, such criticism will not always be reasoned and moderate. Quoting from Monitor Patriot Co. v. Roy (1971), Chief Justice Rehnquist made a point that seemed aimed personally at Jerry Falwell: ‘‘‘The candidate who vaunts his spotless record and sterling integrity cannot convincingly cry ‘Foul!’ when an opponent or an industrious reporter attempts to demonstrate the contrary.’’’ This seemed a diplomatic way of stating to the Reverend Falwell that moralists must expect attacks on their morality. This does not mean, cautioned Chief Justice Rehnquist, that any speech about a public figure is immune from sanction in the form of damages. Speech that is libelous in the conventional sense—speech that contains genuine misstatements of fact and that injures reputation—may be penalized in some circumstances. But even here, Chief Justice Rehnquist admonished, the Constitution requires that the rules of libel be fashioned to provide sufficient breathing space for free speech. Public figures such as Reverend Falwell could not recover civil damages for defamation absent proof that the material was published with knowledge of its falsity or reckless disregard for the truth. Because Flynt’s attack on Falwell was not ‘‘false’’ in the sense required by the law of libel, it was by definition not published with reckless or knowing falsity.
RODNEY A. SMOLLA
References and Further Reading
Cases and Statutes Cited