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“The victim, the libelous and the motherfucker in the outhouse”

“The victim, the libelous and the motherfucker in the outhouse”

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Published by Sky Tao
Media Law thesis for law school.
Media Law thesis for law school.

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Published by: Sky Tao on Apr 26, 2010
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05/12/2014

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“The victim, the libelous and the motherfucker in the outhouse”
 It is the purpose of this thesis to analyze the decision of Hustler Magazine Inc Larry Flynt v Jerry Falwell decided in the United States Supreme Court, particularly the implicationon freedom of speech and the First Amendment of the United States Constitution. Theconclusion of this thesis will be an attempt to assess the extent to which this decisionremains reflective of modern notions of freedom of expression and whether this decisionby the Supreme Court is in the interest of the State as a whole. “Does the First  Amendment's freedom of speech protection extend to the making of patently offensivestatements about public figures, resulting perhaps in their suffering emotionaldistress?
1
 
The case of 
 Hustler Magazine Inc and Larry C Flynt 
v
 Jerry Falwell
2
shook the nation of America, their judicial system and redressed the interpretation of the First Amendment.Should the First Amendment protect public figures and allow damages for libel? Towhom does the First Amendments protection extend and where is the line drawn betweendecent and indecent? “Does America really want a wide-open, unregulated marketplacefor free speech? Or is every great nation required at some point to regulate speech inorder to insure that it does not degenerate into formless, valueless chaos?
3
 “Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof; or abridging the freedom of speech, or of the press; or the right of 
1
http://www.oyez.org/oyez/resource/case/174/print
2
Hustler Magazine, Inc. v Falwell 108 S Ct 876 (1988)
3
Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Chap. 6 Pg 24
 
the people peaceably to assemble, and to petition the government for a redress of grievances.
4
 The law of libel in America was first decided in respect of restrictions on powers of stateson decisions relating to rewarding damages to a plaintiff in the case of 
 New York TimesCo v Sullivan
5
 New York Times
set precedent for the standards to prove whether libel had taken place bystating that the libel that takes place must be proved with “clear and convincingevidence” that defendant published the libel with what the Court in
 New York Times
 referred to as “actual malice. These restrictions were applied in the United States Supreme Court whereit was held that the previous decision of this case was a violation of the First Amendment.
6
”. It was however held in the Supreme Court that eventhough some of the statements were false, the First Amendment nevertheless protectedthe
Times
from the official’s suit. There has been however, much debate over the misuseof the words “actual malice” in the
 New York Times
case
7
 .
4
First Amendment US Constitution Bill of Rights Amendment I
5
New York Times Co v Sullivan 375 US 323 (1974) The facts of the case were that New York Times waspaid to advertise an advert defending Martin Luther King and condemning racism and police brutally in thesouthern parts of America. Alabama juries awarded the police commissioner a sum of US$500,000 againstthe New York Times for libels contained in the advertisement.
6
““Malice” even as defined by Court, is an elusive, abstract concept, hard to prove and hard to disapprove.The requirement that malice be proved provides at best an evanescent protection for the right critically todiscuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the FirstAmendment” as per Mr Justice Black, New York Times Co v Sullivan (1964) at 293
7
“In ordinary English usage, malice is a synonym for hate – it connotes spite, malevolence, ill-will, andvengeance. The law of libel, as it existed in most states prior to
 New York Times
, used this juicy, old-fashioned type of malice as the trigger for permitting juries to award “punitive” damages – damages overand above those needed to compensate the plaintiff for injury, designed to punish the defendant forreprehensible behavior and to deter such evil conduct in the future.” Smolla R, “Jerry Falwell v Larry Flynt: The First Amendment on Trial”, Chap. 10 Pg 66
 
The later case of 
Gertz
8
extended the actual malice burden to include public figureswhereas previous
 New York Times
was only extended to public officials. It was held thatpublic figures exert an enormous influence on the American life, as much influence aspublic officials. Critiques of 
Gertz
however, claim that “the level of First Amendmentprotection should be pegged to the importance of the story, not the people involved…it istoo narrow a conception of the First Amendment to treat only political speech as worthyof special protection…statements concerning art and entertainment…sex and religionshould all be regarded as part of the same First Amendment family.
9
 The facts of 
 Hustler 
are as follows, Hustler Magazine ran a “parody of an advertisementfor a Campari Liqueur
that contained the name and picture of respondent [JerryFalwell
 ] and was entitled “Jerry Falwell talks about his first time”. The “first time” thatHustler magazine refers to as Falwell to have had was “during a drunken incestuousrendezvous with his mother in an outhouse.” Although a seemingly harmless joke, whichno subscriber of Hustler would believe, Mr Falwell thought differently and sued Hustlermagazine to recover damages for invasion of privacy, libel and intentional infliction of emotional distress.
8
Gertz v Robert Welch Inc 418 US 322 (1974)
9
Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Chap. 10 Pg 68
10
Campari Liqueur is a bitter sweet Italian liqueur, their advertisements and infamous for interviewing wellknown public figures and celebrities discussing their “first time” trying the liqueur.
11
Jerry Falwell, a Reverend, who owns various broadcast TV shows, openly speaks and preaches theLord’s word. He is notably America’s proudest figure and is the quintessential public figure of which
Gertz
refers to. “For although Falwell is not a public official, his influence on public policy has beenextraordinary – that influence, in fact, is precisely what drove Larry Flynt to attack him” Smolla R, “JerryFalwell v Larry Flynt : The First Amendment on Trial”, Chap. 10 Pg 68

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