“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

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 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.

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 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, old-
fashioned 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
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.

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 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
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 self-

righteous 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

12
http://www.oyez.org/oyez/resource/case/174/print
13
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

14
ibid.
15
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
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

17
Gertz v Robert Welch (1974) 418 U.S 340 and Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
18
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”

24
ibid at 630
25
“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
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

29
Roth v United States (1957) 354 U.S. 476
30
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.
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”

32
Hustler Magazine, Inc. v Falwell 108 S Ct 876 (1988)
33
“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
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

39
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
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.”

43
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

44
For the purposes of this thesis only that of tolerance shall be discussed as relevant to the Hustler case.
45
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
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

49
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

50
http://www.cnn.com/SHOWBIZ/9701/11/falwell.v.flynt/lkl.00.html
51
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
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?

53
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
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

54
http://www.hfac.uh.edu/comm/media_libel/cases-conflicts/print/hustler.html
55
“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.

59
“..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
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.

61
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”

62
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
 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/Issue-

February-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