Freedom of speech: Flynt versus Falwell
As the Supreme Court has reaffirmed over the years, the “freedom of speech” protection in the First Amendment applies to all kinds of speech, including what might be called “pornographic speech,” the right to which was upheld this week (Feb. 24) in 1988. In Hustler Magazine v. Falwell, the court upheld the right of Hustler,a pornography-peddling magazine owned and published by Larry Flynt, to publish a salacious parody of Jerry Falwell, the Southern Baptist preacher, televangelist and conservative activist who founded Liberty University and helped found the Moral Majority.
Five years earlier, in its November 1983 issue, Hustler conducted an entirely made-up interview with Falwell, in which he admits that “the first time” he had sex was with his mother, in an outhouse, and he was drunk at the time. Falwell promptly sued, asking for $45 million in compensatory damages, claiming libel, invasion of privacy and severe emotional distress.
In a civil trial the following year, the jury rejected Falwell’s claim of libel and invasion of privacy, ruling that it was so obviously a parody that it did not describe an actual event. But the jury did uphold his claim of severe emotional distress and ordered Hustler and Flynt to pay Falwell $200,000 in damages.
After that verdict was upheld on appeal the following year, Flynt appealed to the Supreme Court, which ruled 8-0 that Hustler’s “interview” with Falwell was, as the lower courts ruled, so obviously a parody it was not reasonable to believe that Falwell, a public figure identified with the Christian faith, would have conducted such an interview. This was bolstered by the fact that the November issue also included another obvious parody of an ad campaign that the Italian liquor company, Campari, was running.
Therefore, the Supreme Court ruled the lower courts erred in upholding Falwell’s claim of emotional distress, because Hustler had not violated the First Amendment’s protection of speech, which includes criticism of public figures.
Believe it or not, a few years later Falwell and Flynt met and became friends, and reflecting back on that friendship after Falwell died in 2007, Flynt said, “My mother always told me that no matter how much you dislike a person, when you meet them face to face you will find characteristics about them that you like.
“Jerry Falwell was a perfect example of that. I hated everything he stood for, but after meeting him in person, years after the trial, he and I became good friends. He would visit me in California and we would debate together on college campuses. I always appreciated his sincerity even though I knew what he was selling [religious faith], and he knew what I was selling [revealing flesh].”