Falwell v. Flynt: 1984

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Falwell v. Flynt: 1984

Plaintiff: Jerry Falwell
Defendant: Larry Flynt
Plaintiff Claim: That an ad parody published in Hustler magazine was libelous and intended to cause Jerry Faiwell emotional distress
Chief Defense Lawyers: David 0. Carson, Alan Isaacman, and Arthur P. Strickland
Chief Lawyers for Plaintiff: Jeffrey H. Daichman, Norman Roy Grutman, and Harold H. Rhodes, Jr.
Judge: James C. Turk
Place: Roanoake, Virginia
Dates of Trial: December 3-8, 1984
Verdict: That the ad was not libelous but did inflict emotional distress, thereby entitling Falwell to $200,000 in damages

SIGNIFICANCE: This First Amendment battle between long-time adversaries culminated in an unprecedented verdict.

For several years Larry Flynt's magazine Hustler had published a bizarre mix of sex, religion, humor and political comment. In the November 1983 issue it spoofed a Campari vermouth ad campaign in which various celebrities were asked to recall their "first time," that is, the first time they tried Campari. Hustler's version had nationally known pastor and political activist Reverend Jerry Falwell describing his "first time" as an incestuous encounter with his mother. The ad further stated that Falwell needed to be drunk to preach. At the foot of the page was a brief and barely noticeable disclaimer, "Ad parody—not to be taken seriously." Falwell, a perennial target of Flynt's irreverence, filed suit for libel, requesting $45 million in damages.

The jury was seated on December 3, 1984 and after opening statements, Falwell's attorney, Norman Roy Grutman, led off with his star witness. Falwell vehemently denied every allegation in the ad. "Have you ever taken alcoholic beverages before going into the pulpit to deliver your message?" asked Grutman.

"Never at any time," responded Falwell.

Over strident defense objections, Grutman inquired, "Mr. G. Falwell, specifically, did you and your mother ever commit incest?"

"Absolutely not."

The reason for the defense objections was simple: it had been their contention all along that the idea of Jerry Falwell enjoying an incestuous relationship with his mother was so preposterous that no one could possibly believe it. Judge James Turk's decision to allow the question dealt a body blow to that argument, as did Falwell's heartfelt comment to the jury, "It is the most hurtful, damaging, despicable, low-type personal attack that I can imagine one human being can inflict upon another."

Flynt Duels with Lawyer

When it came time for Flynt to testify, he did so from the wheelchair to which he had been confined since 1978 when a would be assassin's bullet left him paralysed. Earlier, the defense failed in its attempt to suppress a foulmouthed videotaped deposition that Flynt had given to Grutman. That allowed the jury to see Flynt at his worst. Now they had the opportunity to observe the publisher in a far different light. Flynt protested that pain and medication had rendered the deposition meaningless: this, he assured the court, was the real him. "What," asked chief defense attorney Alan Isaacman, "was intended to be conveyed by the ad?"

Well, we wanted to poke fun at Campari … because the innuendoes that they had in their ads made you sort of confused as to if the person was talking about their first time as far as a sexual encounter or whether they were talking about their first time as far as drinking Campari. … They [the public] know that it was not intended to defame the Reverend Falwell, his mother, or any members of his family, because no one could take it seriously.

Isaacman explored whether Flynt had deliberately intended to damage Falwell's reputation by printing the satire.

Flynt scoffed. "If I really wanted to hurt Reverend Falwell, I would do a serious article on the inside … talk about his jet airplane or maybe Swiss bank accounts … I don't know if such accounts exist, but if you want to really hurt someone … you put down things that are believable. You don't put down things that are totally unbelievable."

The duel between Flynt and Grutman, neither of whom attempted to conceal their poor opinion of the other, was much awaited. They were old protagonists. Grutman had previously represented Penthouse magazine in an action against Flynt and lost. Here, as the two crossed swords, Judge James Turk several times had to defuse the rhetoric. But Grutman pounded away. "Mr. Flynt, have you ever said, 'Free expression is absolute?'"

"Yes, I believe free expression is absolute …"

"And "absolute' means that you can say whatever you want?"

"Yes," replied Flynt, adding coolly. "You want to bait me?"

Grutman shrugged off the taunt and played a televised interview in which Flynt charged that his deposition had been a parody of Grutman's conduct in this case. "Do you deny having said what appears to have been uttered by you, as it was shown on that video monitor?"

Flynt sighed. "Yes. It's very difficult to take you seriously."

Jury Verdict Unprecedented

After clarification from Judge Turk on the complex legal issues involved, the jury retired. On December 8, 1984, they rejected the libel suit but found that Flynt had intended to cause Falwell emotional distress. For this reason they awarded the plaintiff $100,000 actual damages and $100,000 punitive damages.

Never before had a jury reached such a verdict. Clearly this was a decision headed for appeal, and in February 1988, the Supreme Court unanimously voted to reverse the lower court's verdict. In reaching their decision the Court made no attempt to condone the content of the Hustler parody, other than to say it was entitled to Constitutional protection.

Falwell v. Flynt ignited a storm of protest among America's media. Many feared an erosion of First Amendment right to free speech. In upholding this view the Supreme Court implied that while insults to public figures might be painful, denying the right to make them would be intolerable.

—Colin Evans