HUSTLER MAGAZINE AND LARRY FLYNT v. JERRY FALWELL 485 U.S. 46 (1988)

On first glance, this appears to be a case in which the first amendment ran amok because the Supreme Court extended its constitutional protection to a malevolent and disgusting libel that in no way expressed an opinion or an idea. Hustler Magazine, which caters to prurient interests, published a parody of an advertisement in which Jerry Falwell, a nationally syndicated television preacher and head of a political organization called The Moral Majority, was purportedly interviewed. By innuendo, the parody suggested that his first experience with sexual intercourse was with his mother in an outhouse when he was drunk. At the bottom of the page in small print was a disclaimer, "ad parody—not to be taken seriously."

Falwell sued for damages, claiming libel and the intentional infliction of emotional distress. A jury found for him on the issue of emotional distress but against him on the libel claim because the parody could not reasonably be understood to describe actual facts. Hustler appealed the verdict on the emotional distress issue, arguing that the "actual malice" standard of new york times v. sullivan (1964) must be met before one could recover for emotional distress. The Fourth Circuit sustained the verdict on ground that the Sullivan standard had been met because Hustler acted recklessly. Unanimously, the Supreme Court sustained Hustler in an opinion by Chief Justice william h. rehnquist.

His opinion makes little sense unless one understands that the dispositive fact was the trial jury's refusal to find that Hustler had libeled Falwell. One might think that if the parody was not believable, it was false, and if it was false and recklessly published with malice, the Sullivan standard had been met; but the Court took as decisive the jury's finding that Hustler had not published a libel because no one would reasonably believe the parody described a fact. Accordingly, the question before the Court was not whether Falwell's reputation had been maliciously and recklessly libeled. Rather, the question was whether his emotional distress overcame a First Amendment protection for offensive speech calculated to inflict psychological injury, "even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved."

In response to this question, Rhenquist discoursed on the importance of the First Amendment to the free flow of "ideas and opinions" and the need for "robust debate" concerning public figures involved in important public issues. One might read this section of the opinion as a parody of the Court's great free-speech opinions, for nothing in Hustler 's alleged interview with Falwell related to any public issues or reflected the expresison of ideas or opinions. The interview reflected slime and sleaze.

More persuasive was Rehnquist's argument that to hold that public figures or public officials might recover damages for the infliction of emotional distress might mean that "political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject." Nevertheless, Thomas Nast's depictions of the Tweed Ring or Herblock's of Richard Nixon seem wholly different from Hustler 's of Falwell; Hustler carried no ring of truth and addressed no issues other than, broadly speaking, Falwell's moral character. The outrageousness of the allegation against him places it apart from traditional political cartooning and satire, but the Court was unable to make distinctions. It relied on the Sullivan standard by concluding that a public figure victimized by a publication inflicting emotional injury could not recover damages without showing false facts published with actual malice.

Justice byron r. white in an inch of space, separately concurring, noted that as he saw the case, the Sullivan precedent was irrelevant because the jury found that the Hustler parody contained no assertion of fact. That being so, one may conclude that the Court correctly decided that the First Amendment barred Falwell from recovering damages on the sole ground that he had suffered emotional distress.

Leonard W. Levy
(1992)