“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 implication on freedom of speech and the First Amendment of the United States Constitution. The conclusion of this thesis will be an attempt to assess the extent to which this decision remains reflective of modern notions of freedom of expression and whether this decision by 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 offensive statements about public figures, resulting perhaps in their suffering emotional distress? 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? To whom does the First Amendments protection extend and where is the line drawn between decent and indecent? “Does America really want a wide-open, unregulated marketplace for free speech? Or is every great nation required at some point to regulate speech in order to insure that it does not degenerate into formless, valueless chaos? 3”

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
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http://www.oyez.org/oyez/resource/case/174/print 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 states on decisions relating to rewarding damages to a plaintiff in the case of New York Times Co v Sullivan 5. These restrictions were applied in the United States Supreme Court where it was held that the previous decision of this case was a violation of the First Amendment. New York Times set precedent for the standards to prove whether libel had taken place by stating that the libel that takes place must be proved with “clear and convincing evidence” that defendant published the libel with what the Court in New York Times referred to as “actual malice 6”. It was however held in the Supreme Court that even though some of the statements were false, the First Amendment nevertheless protected the Times from the official’s suit. There has been however, much debate over the misuse of the words “actual malice” in the New York Times case 7.

First Amendment US Constitution Bill of Rights Amendment I New York Times Co v Sullivan 375 US 323 (1974) The facts of the case were that New York Times was paid to advertise an advert defending Martin Luther King and condemning racism and police brutally in the southern parts of America. Alabama juries awarded the police commissioner a sum of US$500,000 against the 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 to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment” 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, and vengeance. The law of libel, as it existed in most states prior to New York Times, used this juicy, oldfashioned type of malice as the trigger for permitting juries to award “punitive” damages – damages over and above those needed to compensate the plaintiff for injury, designed to punish the defendant for reprehensible 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
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The later case of Gertz 8 extended the actual malice burden to include public figures whereas previous New York Times was only extended to public officials. It was held that public figures exert an enormous influence on the American life, as much influence as public officials. Critiques of Gertz however, claim that “the level of First Amendment protection should be pegged to the importance of the story, not the people involved…it is too narrow a conception of the First Amendment to treat only political speech as worthy of special protection…statements concerning art and entertainment…sex and religion should 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 advertisement for a Campari Liqueur 10 that contained the name and picture of respondent [Jerry Falwell 11] and was entitled “Jerry Falwell talks about his first time”. The “first time” that Hustler magazine refers to as Falwell to have had was “during a drunken incestuous rendezvous with his mother in an outhouse.” Although a seemingly harmless joke, which no subscriber of Hustler would believe, Mr Falwell thought differently and sued Hustler magazine to recover damages for invasion of privacy, libel and intentional infliction of emotional distress.

Gertz v Robert Welch Inc 418 US 322 (1974) 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 well known 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 the Lord’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 been extraordinary – that influence, in fact, is precisely what drove Larry Flynt to attack him” Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Chap. 10 Pg 68
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Though Falwell’s claims for libel and intentional infliction of emotional distress did succeed in lower courts, it was overruled by the Supreme Court. It was held that for the purposes of the First Amendment and indeed, of this case, “…public figures [Jerry Falwell] may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." [New York Times malice] The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject. 12”

In giving the deposition of the case before court, Isaacman [attorney for Larry Flynt] was asked exactly why the portrayal of Falwell and his mother together was necessary. In his response he states that “…him and his mother together to show what’s called in literary form travesty to put somebody in a ridiculous, unbelievable setting for the purposes of effect. They put him in this situation knowing nobody would really perceive that that’s what he’s actually doing, but to say we’re going to deflate this man who is so selfrighteous in the area of sex and telling everybody else what to do, as well as telling them what to read. 13” What public purpose does this serve? Isaacman argued that the public purpose served by this depiction is simply that “somebody who is out there telling other people how to live and being very serious and sober about it and acting as though he has more knowledge that they do about how they live their lives – Hustler has a right to make

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http://www.oyez.org/oyez/resource/case/174/print Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Chap 37 Pg 275

comments about it and make him look ridiculous as long as they don’t state false statements knowingly or recklessly. 14”

The interest in this case of the Falwell v Flynt is that for the first time, in America [admittedly not the last time], was a case “from Jerry Falwell’s perspective, his life’s work was proselytizing for God; Flynt’s was prostituting for Satan.” 15 A battle between good and evil with only the protection of the First Amendment to ascertain who was in the right, the question is, to whom should the First Amendment be protecting and to what extent? “For many Americans, it is inconceivable that the First Amendment could be intended to protect Hustler and the type of crude, mean-spirited attack Flynt launched against Falwell. Surely, they think, Hustler is beneath the dignity of the First Amendment. Surely, freedom of speech is not an absolute license of licentiousness. Flynt’s coarse speech is nothing but excrement, a form of moral pollution fouling the cultural environment. 16” How exactly then has the Supreme Court come to the decision that the satire of Falwell having sex with his mother in an outhouse serves as public interest and maintains the free flow of ideas in the marketplace?

It must be noted that the case of Gertz was considered throughout the course of the Hustler case, particularly the oft-repeated dictum “Under the First Amendment there is no such thing as a false idea. But there is no constitutional value in false statements of fact… Neither the intentional lie nor the careless error materially advances society's

ibid. Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Chap.2 Pg 7 16 Smolla R, “A review of Jerry Falwell v Larry Flint: The First Amendment on Trial”, New York Times 1988 by William A Henkin
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interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 17” The jury in the Hustler case in the lower courts held that what was being said in the parody was not a false statement of fact but instead hyperbole 18 as there could be no reasonable reader who would believe the parody as a statement of fact.

The defense for Hustler Magazine claimed that the parody worked on two levels, a parody of the Campari Liqueur advertisement and the satire of Jerry Falwell. The satire of Jerry Falwell “involves the farcical juxtaposition of Falwell, the great American moralist, with the outrageous actions of having sex with his mother in an outhouse and getting drunk before preaching on the pulpit. 19” They claimed that this parody did in fact serve public interest, “…with respect to Jerry Falwell alone, there are two public interests. One is there is a public interest in having Hustler express its view that what Jerry Falwell says, as the rhetorical question at right to say that somebody who’s out there campaigning against it, saying don’t read our magazine and we’re poison on the minds of America and don’t engage in sex outside of wedlock and don’t drink alcohol – Hustler has every right to say that man is full of B.S… 20” The public interest referred to
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Gertz v Robert Welch (1974) 418 U.S 340 and Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). http://dictionary.reference.com/search?q=hyperbole “extravagant exaggeration” 19 ibid at Chap. 5 Pg 22 20 as per Isaacman in his delivery at the Supreme Court, 86-1278 Hustler Magazine and Larry C Flynt v Jerry Falwell, he continues to say ”…and what the first part of the ad that’s what this ad parody says. And what the first part of the ad parody does, it puts him in a ridiculous setting. Instead of Jerry Falwell speaking from the television with a beatific look on his face and the warmth that comes out of him, and the

by Isaacman is the purpose to serve the “marketplace of ideas” theory. This theory of “marketplace of ideas” was first conceptualized in 1919 in the case of Abrams v. United States 21 by Justice Holmes who “created the powerful and enduring "marketplace of ideas" metaphor to encapsulate the concept of freedom of speech. In the marketplace metaphor, ideas compete against one another for acceptance -- with the underlying faith that truth will prevail in such an open encounter. 22”

Justice Holmes states “the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger, and, at any rate, would have the quality of an attempt. 23” He further adds that “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech

sincerity in his voice, and he’s a terrific communicator, and he’s standing on a pulpit, and he may have a Bible in his hand – instead of that situation, Hustler is saying, let’s deflate this stuffed shirt, let’s bring him down to our level, or at least to the level where you will listen to what we have to say.” 21 Abrams v United States (1919) 250 U.S. 616 22 Levendosky Charles, “Market place keeps speech free of government controls” http://fact.trib.com/1st.lev.internet.marketplace.html 23 Abrams v United States (1919) 250 U.S. 628

impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. 24”

The Supreme Court held in Hustler that having determined Jerry Falwell as a public figure 25, he had willingly entered into an arena “in which he could expect to be the target of “robust” criticism and…that the parody interview was a part of “the free flow of ideas…on matters of public interest” that is so essential to the heath of a democracy. 26”

Taking into consideration the theory of marketplace of ideas to the facts of the Hustler case, how does this concept serve when the ad parody itself was based on untruths? How does the depiction of a so-called “mother fucker” in an outhouse when applied to a private figure who by-and-large stands for the exact opposite of what the ad parody accuses, serve the free flow of ideas? In FCC v Pacifica Foundation 27 it was stated that “…the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. 28”

ibid at 630 “Respondent is the host of a nationally syndicated television show and was the founder and president of a political organization formerly known as the Moral Majority. He is also the founder of Liberty Univertsity in Lynchburg, Virginia, and is the author of several books and publications.” In footnote 5 of Hustler Magazine and Larry C Flynt v Jerry Falwell (1988) 485 U.S 46 26 Fish Stanley, “There’s no such thing as free speech…and it’s a good thing too”, Oxford University Press at Chap 9 Pg 120 27 FCC V Pacifica Foundation (1978) 438 U.S. 726 28 ibid at 745-746
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It is precisely this argument that the Supreme Court in the Hustler case used to establish that Falwell’s claim for libel damages was unfounded on the principle that Falwell was a “public figure” for the purposes of the First Amendment. Though the ad parody itself was an example of “obscene” material, the case itself had nothing to do with the interpretation of the meaning of “obscene”.

However, the Supreme Court has held in the case of Roth v United States 29 that “obscene” material has no protection under the First Amendment and that the “guarantees of the freedom of expression were never meant to be absolute protection for every possible utterance of any sort - therefore, some standards are reasonable to set… 30” The view in the Hustler case was not so much as that the parody was an obscene piece of publication, more so that it was viewed as a “distant cousin of the political cartoons 31” The issue was not whether or not it was an “obscene” piece of publication, it was mainly the issue of Falwell’s claim for damages for “emotional distress” due to the nature of the parody. It had already been held in the lower courts that the parody itself was unbelievable to readers and the Supreme Court confirmed the same, stating that the parody is a satire.

Chief Justice William Rehnquist in his judgment for the Hustler cases stated that to allow a jury to punish satire would be to allow jurors to decide a verdict based on personal taste. He stated that “The appeal of the political cartoon or caricature is often based on

Roth v United States (1957) 354 U.S. 476 http://atheism.about.com/library/decisions/speech/bldec_RothUS.htm 31 The Supreme Court made reference to the similarities of the parody by Hustler Magazine with those of political cartoonists depicting former United States presidents with overly exaggerated features.
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exploration of unfortunate physical traits or politically embarrassing events – and exploration often calculated to injure the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. 32” “All I am guilty of is bad taste 33” And it exactly this ideology of “bad taste” that Justice Scalia referred to in his judgment in Pope v Illinois. 34 He stated that “I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum 35. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide "What is Beauty" is a novelty even by today's standards. 36”

Defense for Falwell claimed that the “caricature” in question was “outrageous” and in his judgment, Chief Justice William Rehnquist responded with “If it were possible by laying down a principle standard to separate the one from the other, public discourse would probably suffer little or no harm. 37” It was held that “Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on he basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct… 38”

Hustler Magazine, Inc. v Falwell 108 S Ct 876 (1988) “The People vs Larry Flynt” Produced by Milos Forman, at 32 minutes 22 seconds 34 Pope v Illinois 481 U.S. 497 35 Latin for “There’s no disputing about taste.” Another version of this saying is “There’s no accounting for taste.” http://www.bartleby.com/59/3/degustibusno.html 36 Pope v Illinois 481 U.S 497 37 ibid 38 Hustler Magazine Inc v Falwell 485 US at 47
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Legal theorist Stanley Fish argues, that from the Gertz dictum “...there is no such thing as a false idea” couldn’t essentially mean “what it possibly mean what it says, because what it says is obviously false…that for First Amendment purposes a court will suspend its judgments as to truth and falsity or right and wrong in order to give expression the widest possible scope. 39” In the above mentioned case of Abrams, Fish argues that Justice Holmes observes that “…a belief and conviction are notoriously changeable: the truth for which we would die (and perhaps kill) today may become tomorrow’s scorned error, and, mutatis mutandis, the outlandish opinion we would today rule out of court may become tomorrow’s cherished orthodoxy40”

What then has the First Amendment protected in relation to the Hustler case? “The State’s interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about a public figure involved. 41” Flynt poses the same question, “…Let's say the Supreme Court would have decided in the reverend's favor, OK. That would have meant anybody that is doing parody, any editorial writers, anyone who is doing something that might inflict emotional distress on whoever they're writing about... ...political cartoonists -- I mean, the whole industry would have been a pearl. I think that's why it was a unanimous decision in my favor. 42” The idea that Flynt poses here is that the

Fish Stanley, “There’s no such thing as free speech…and it’s a good thing too”, Oxford University Press at Chap 9 Pg 124 40 ibid 41 Hustler Magazine Inc v Falwell 485 US at 46 42 http://www.cnn.com/SHOWBIZ/9701/11/falwell.v.flynt/lkl.00.html

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First Amendment stands for a fundamental belief that speech should be tolerated, no matter what that speech imposes. The question is to what extent?

Smolla, who is a First Amendment lawyer and followed the case of Hustler states that “…Hustler is the quintessential example of what out to be protected by the First Amendment. Tolerance is often nothing but indifference. It is easy to defend freedom of speech when the speech is bland, polite and civilized. Tolerance is only meaningful when the speech is jarring to mainstream sensibilities…Larry Flynt and Hustler constantly push us to the outer limits of our tolerance. If we are really to be pluralistic and open culture…we must be willing to embrace all speech, even speech at the extremes, for it is only by such toleration that we give meaning to the ideal of an open society. 43”

Although Smolla raises many interesting points within his book, he does not seem to like Flynt very much. However, he points out that it is not the character of Flynt that stands facing the First Amendment, it is Flynt’s right to freedom of speech and of expression that is in the spirit of what the First Amendment should stand for and should be viewed in the near future as consequence of this trial. He notes that although both Flynt and Falwell are on different spectrums in relation of professions, they both are similar in so far as they both sell different versions of the same thing. He notes that “History reveals that, as often as not, the great First Amendment battles gave been fought by our cultural rejects and misfits, by our communist-agitators, our civil rights activists, our Ku Klux Klanners, our Jehovah’s Witnesses, our Larry Flynts.”

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Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Chap 1 Page 4

The First Amendment rulebook implemented by the First Amendment itself breeds the notion that the three main tenets of free speech are humility, tolerance and optimism 44. Tolerance is the idea of “promoting social acceptance of radical ideas…not substantive agreement with the ideas but a procedural recognition that it is all right to disagree 45” The idea that all speech should be tolerated or that in order for a true democratic society to function stems from the John Milton’s Aeropagitica, touted as being a “celebration of toleration in matters of expression. 46”

“The First Amendment cannot be perverted to mean that the nation must tolerate ideas repugnant to the Constitution itself and the moral truths it embodies. 47” Tom Campbell states in his article that “…there are, for starters, the classic trio of (1) the sole path to truth, (2) the right to self determination and (3) the presupposition of democracy. To which we may add (4) the stimulus to tolerance, (5) the flourishing of plurality and (6) the efficient allocation of resources. Should seven theories seem more rounded, there is (7) the intrinsic worth of the communicative experience. 48” Though this theory seems rational to apply to the case of Hustler. The nature of Hustler’s ad parody suggests that the tolerance that society should have for the well-being and flourishing democratic

For the purposes of this thesis only that of tolerance shall be discussed as relevant to the Hustler case. http://www.spectacle.org/296/rulebk.html “Introduction: The Free Speech rulebook” 46 Lowe & Johnson, “There is no such thing as free speech: an interview with Stanley Fish”, http://www.lib.latrobe.edu.au/AHR/archive/Issue-February-1998/fish.html 47 Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Chap. 6 Pg 26 “The First Amendment, in this view, is sacred because it is essential to self-governance. But only constructive speech is essential to self-governance. There is no value in destructive speech. Speech that is patently immoral cannot contribute to moral perfection. Hustler’s parody, in the words of Larry Flynt’s own testimony, is about Jerry Falwell “fucking his mother in the outhouse.” To the fundamentalist mind this is the antithesis of morality; it bears no plausible relation to constructive self-governance; it should be treated as utterly beyond the protections of the First Amendment, as a constitutional pariah and outcast.” 48 Campbell Tom, “Rationales for Freedom of Communication”, Dartmouth press
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society to which we belong to, means that we should tolerate “outrageous” notions of a public figure even those notions of “fucking his mother in an outhouse”.

The jurisprudencial argument posed by John Stuart Mill’s in his book On Liberty sets out a more understandable concept than those offered by today’s Courts. He states that “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value expect to the owner, if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation – those who dissent from the opinion, still more that those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by collision and error. 49”

And what about the victim in question? Falwell claims that “…The idea was that while you can attack a public figure, you shouldn't be able to attack his mother, or his wife, or his children, they are not public figures… You can't scream fire in a crowded theater. In other words, my First Amendment rights and yours end where the welfare of the little people begins, and there are laws about that. It would not have been unreasonable for the U.S. Supreme Court to rule as the fourth circuit court of appeals did, that there is a

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Mills John Stuart, “On Liberty”, Penguin Books 1974, Page 76

sensible line where that a garbage magazine like "Hustler" can go so far but cannot demean and attack, even in a parody or whatever, innocent, nonpublic figures... 50” However it is precisely the speech that Hustler publishes that the First Amendment ruled in the Supreme Court as speech that is protected. “…even though falsehoods have little value in and of themselves, they are nevertheless inevitable in free debate…and assertions would have an undoubted “chilling” effect on speech relating to public figures that does have constitutional value… 51” Stanley Fish’s view is that “…people cling to the First Amendment pieties because they do not wish to face what they correctly take to be the alternative…that decisions about what is and is not protected in the realm of expression will rest not on principle or firm doctrines but on the ability of some persons to interpret – recharacterize or rewrite – principle and doctrine in ways that lead to the protection of speech they want heard and the regulation of speech they want heard and the regulation of speech they want silenced…when the First Amendment is successfully invoked, the result is not a victory of free speech in the face of a challenge from politics but a political victory won by the party that has managed to wrap its agenda in the mantle of free speech. 52”

The Absolutist approach is one of the approaches in which one could take in respect of analyzing the First Amendment and is founded from Justice Black’s interpretation of what the First Amendment meant by “Congress shall make no law…” in the case of New
http://www.cnn.com/SHOWBIZ/9701/11/falwell.v.flynt/lkl.00.html Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Appendix II, Supreme Court judge ruling by Chief Justice Rehnquist, February 24 1988. He further adds that in respect of the libel claim that Falwell sought, “Freedom of expression require breathing space…This breathing space is provided by a constitutional rule that allows pubic figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with requisite level of culpability.” 52 Fish Stanley, “There’s no such thing as free speech, and it’s a good thing, too”, Oxford University Press at Chapter 8 Page 110
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York Times. Under this approach, the only question is whether the action in conduct is truly “speech” of which it is then therefore protected by the First Amendment or if it is “conduct” of which it is therefore subject to reasonable governmental regulation. The idea that Falwell speaks of “you can’t scream fire in a crowded theater” is one of the examples to this absolutist approach, meaning that words might be so closely connected with producing an action as to be unprotected.

Fish’s line of argument is “…it looks like speech, but it’s really action, but it’s really speech; or, it looks like intimidation, harassment, libel, and group vilification, but it’s really an expression of an idea. Armed with this marvelously flexible instrument, a court can have its First Amendment and make you eat it too, can tell you, for example, that the malicious depiction of a man having incest with his mother is an idea… 53” It is essentially this free flow of idea that must be protected by the First Amendment in order for a democratic society to function in modern society. A jurisprudential argument would consider whether or not the First Amendment should be re-written to incorporate a more modern day understanding of what is accepted as free speech and what isn’t. Or should we leave this concept be left best for the courts to decide? Previous to the Hustler decision Chief Justice William Rehnquist certainly rejected any cases of this nature on the principle of not allowing the First Amendment to be abused. Why the change of heart? And out of all the cases, why Hustler?

Fish Stanley, “There’s no such thing as free speech, and it’s a good thing, too”, Oxford University Press at Chapter 9 Page 124

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The Hustler case certainly had unlikely support from many publishers ranging from New York Times to the American Association of Free Press as well as others who frowned on the Court’s decision of the case. Some publishers dreaded an unfavorable libel ruling would hurt the entire media forum, “Supporters of Falwell believed the ruling gave people such as Flynt permission to be offensive and obscene. Political cartoonists, however, welcomed the verdict. Many would have felt the need for self-censorship if the verdict had been rendered otherwise. 54” Others had a different viewpoint “Paradoxically, the more unbelievable an attack, the more protection it will receive…more vicious satire that will keep honorable people from entering public life. 55”

“Hustler’s dirty little joke was only one page long, but it implicated one of the most convoluted and confusing bodies of law in contemporary legal practice – the interlocking theories of libel, invasion of privacy, and infliction of emotional distress that serve as the principal vehicles for modern lawsuits against publishers and broadcasters. 56”

In 1996, Larry Flynt was immortalized by Hollywood in the movie “The People vs Larry Flynt”, many objected to the glorifying portrayal of Flynt as the “champion of the First Amendment 57” whilst others had the view that “…when you make a history lessen, you have to be faithful to the facts. But when you make a drama, all you have to do is to be faithful to the spirit of the facts. 58” Whilst the movie itself was entertaining, the politics
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http://www.hfac.uh.edu/comm/media_libel/cases-conflicts/print/hustler.html “The Rehnquist Court smiles on satire” March 7 1988 US News & World Report 56 Smolla R, “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, Chap. 10 Pg 64 57 Steinem Gloria, “Hollywood cleans up Hustler”, Http://www.feminist.com/resources/artspeech/media/flynt.htm , 1997 January 7th 58 Titelbaum Michael, “From Flynt no Fire”, http://www.digitas.harvard.edu/~perspy/old/issues/1997/mar/flynt.html

surrounding the movie was nonetheless at the core of the issues relating to the infamous Hustler case. The cast of the movie itself led to debates over the accurate depiction of Flynt himself. Woody Harrelson, a notorious First Amendment fanatic and an avid supporter of Steinem 59, played the role of Flynt in the movie. Harrelson’s charming looks and charisma, helped sell the idea that although Flynt’s work was certainly indecent, demeaning to women and obscene, he is a hero and the ideal spokesperson for the First Amendment rights as he is the perfect candidate for free speech.

The view of Flynt, is that he is a notorious “smut-peddler”, “…Unlike his film character, the real Mr Flynt is hardly an unwavering advocate of free speech. Indeed other feminists and I have been attacked in Hustler using our First Amendment rights to protest pornography. 60” and a “scumbag”. However open he is about his indecent behavior as exercised in his publications, the case of Hustler is indeed a historical moment in the realms of libel law and in awarding damages for the intention of inflicting emotional distress. The outcome and result of the Hustler case has left the literacy world of satire and political cartoonists cheering for their rights to continue their work and in turn making America’s “pimp” an unlikely spokesperson for free speech and the First Amendment.

“..feminist editor, writer, and speaker. A popular media figure, a writer, and an editor of Ms. magazine from 1972 to 1987, Steinem has been active politically since 1969 as an advocate for women in their struggle for equality and self-determination, as well as for those excluded from full participation in American society because of race or poverty” from http://college.hmco.com/history/readerscomp/rcah/html/rc_082200_steinemglori.htm 60 Steinem Gloria, “Hollywood cleans up Hustler”, Http://www.feminist.com/resources/artspeech/media/flynt.htm , 1997 January 7th

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In conclusion, does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress? No. The unanimous opinion by the Supreme Court held confirms that public figures may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." They reconfirmed that “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also essential to the common quest for truth and the vitality of society as a whole. 61”

The First Amendment should not be taken as a simple guideline for how a democratic society should be but more that it should be at the heart and foundation for a society to grow and flourish upon. The case of Hustler has helped America reform and reinvent the way the First Amendment should be interpreted. Satirical commentary or parodies of the most distasteful type should not be disregarded as unpopular speech and therefore without the protection of the First Amendment. Although those commentaries or parodies that show an actual malice should undoubtedly be grounds for libel, punishing those who are simply offering a different type of viewpoint of a certain person or topic as satire would mean satire itself should be banned. It would go against the basic principle of the First Amendment should the Supreme Court have decided against Hustler Magazine and indeed against a genre of literacy work such as satire.

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Hustler Magazine Inc v Falwell 485 US

Though the struggle between the First Amendment protections and freedom of speech is far from over, Hustler has given hope to those who do believe in the acceptance and toleration of all speech, including those with false statements of fact. “The court’s effort to punish one distasteful parody threatens the security of everyone’s precious right to free speech. 62” America needs cases like Hustler to ensure the security of this protection of free speech, as Flynt puts it “…if the First Amendment will protect a scumbag like me, it will protect all of you, because I am the worst. 63”

Kirkpatrick Susan, “Falwell v Flynt : Intentional Infliction of Emotional Distress as a Threat to Free Speech” 81 NW UL Rev. 993 63 “The People vs Larry Flynt” Produced by Milos Forman

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Bibliography Books • Rodney A Smolla “Jerry Falwell v Larry Flynt : The First Amendment on Trial”, St Martins Press, First Edition • Stanley Fish “There’s no such thing as free speech…and it’s a good thing too”, Oxford University Press • • John Stuart Mill “On Liberty”, Penguin Classics Sallie Spilsbury “Media Law”, Cavendish Publishing Limited

Articles • • • Barendt & Hitchens “The Principles of Media Law” (lecture handout) Tom Campbell “Rationales for Freedom of Communication” (lecture handout) Peter Lowe & Annemarie Jonson “There is no such thing as free speech: an interview with Stanley Fish” Http://www.lib.latrobe.edu.au/AHR/archive/IssueFebruary-1998/fish.html • Susan Kirkpatrick “Falwell v Flynt: Intentional Infliction of Emotional Distress as a threat to Free Speech”, 81 Northwestern University Law Review 1987 • • “The Rehnquist Court smiles on satire” March 7 1998 U.S News & World Report “Outrageous Speech? Yes and Free” February 26 1988 The New York Times Company • “First Amendment: Does media coverage influence the outcome of judicial decisions?” October 1992 ABA Journal • Claire Edwards “Falwell debates free speech case detail with Flynt” November 3 1997 The Cavalier Daily

William A Henkin “A Review of Jerry Falwell v Larry Flint: The First Amendment on Trial” Http://www.sexuality.org/1/wh/whfalwel.html

“Hustler ruling ‘essential win’ First Amendment advocates cite mid-80s trend” February 25 1988 Houston Chronicle

Michael Titelbaum “From Flynt no Fire” Http://www.digitas.harvard.edu/~perspy/old/issues/1997/mar/flynt.html

Gloria Steinem “Hollywood Cleans up Hustler” January 7 1997 New York Times Http://www.feminist.com/resources/artspeech/media/flynt.htm

James C Goodale “The First Amendment and the Freedom of Press” February 1997 USIS – Issues of Democracry Http://www.usinfo.state.gov/journals/itdhr/0297/ijde/goodale.htm

“Introduction: The Free Speech Rulebook” Http://www.spectacle.org/296/rulebk.html

Cases • • • • • • • • Hustler Magazine v Falwell 485 US 46 (1988) New York Times Co v Sullivan 375 US 323 (1974) Gertz v Robert Welch Inc 418 US 322 (1974) Abrams v Unites States 250 US 616 (1919) FCC v Pacifica Foundation 438 US 726 (1978) Roth v United States 354 US 476 (1957) Pope v Illinois 481 US 497 Bose Corp v Consumers Union of US Inc 466 US 485 (1984)

Multi-Media • • “The People vs Larry Flynt” (movie) Hustler Magazine v. Falwell 485 U.S. 46 (1988) Docket Number: 86-1278 Audio Resources (Oral Argument) http://www.oyez.org/oyez/resource/case/174/audioresources • CNN Transcript “Larry Flynt & Jerry Falwell” Aired January 10 1997 Http://www.cnn.com/SHOWBIZ/9701/11/falwell.v.flynt/lkl.00.html

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