Hustler Magazine v. Falwell

''Hustler Magazine, Inc. v. Falwell'', 485 U.S. 46 (1988), was a landmark decision of the United States Supreme Court ruling that the First and Fourteenth Amendments prohibit public figures from recovering damages for the tort of intentional infliction of emotional distress (IIED), if the emotional distress was caused by a caricature, parody, or satire of the public figure that a reasonable person would not have interpreted as factual.. See also Deana Pollard Sacks, ''Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations'', 120 Yale Law Journal Online 193 (2010).

In an 8–0 decision, the court ruled in favor of ''Hustler'' magazine, holding that a parody ad published in the magazine depicting televangelist and political commentator Jerry Falwell Sr. as an incestuous drunk, was protected speech since Falwell was a public figure and the parody could not have been reasonably considered believable. Therefore, the court held that the emotional distress inflicted on Falwell by the ad was not a sufficient reason to deny the First Amendment protection to speech that is critical of public officials and public figures. Constitutional limits to defamation liability cannot be circumvented for claims arising from speech by asserting an alternative theory of tort liability such as IIED.

Background

Known for its explicit pictures of nude women, crude humor, and political satire, ''Hustler'', a monthly magazine published by Larry Flynt, printed a parody ad in its November 1983 issue that targeted Jerry Falwell, a prominent Christian fundamentalist televangelist and conservative political commentator.

The parody was mimicking the popular advertising campaigns that Campari, an Italian liqueur, was running at the time that featured brief contrived interviews with various celebrities that always started with a question about their "first time", a double-entendre intended to give the impression that the celebrities were talking about their first sexual encounters before the reveal at the end that the discussion had actually concerned the celebrities' first time tasting Campari.

The ''Hustler'' parody, created by writer Terry Abrahamson and art director Mike Salisbury, included a headshot photo of Falwell and the transcript of a spoof interview, where, misunderstanding the interviewer's question about his "first time", "Falwell" casually shares details about his first sexual encounter, an incestuous rendezvous with his mother in the family outhouse while they were both "drunk off our God-fearing asses on Campari." In the spoof interview, "Falwell" goes on to say that he was so intoxicated that "Mom looked better than a Baptist whore with a $100 donation," and that he decided to have sex with her because she had "showed all the other guys in town such a good time." When the interviewer asked if Falwell ever tried "it" again, once again mistaking the interviewer's intention, "Falwell" responded, "Sure ... lots of times. But not in the outhouse. Between mom and the shit, the flies were too much to bear." Finally, the interviewer clarifies that he's asking if Falwell had tried Campari again, "Falwell" answered, "I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit ''sober'', do you?"

The ad carried a disclaimer in small print at the bottom of the page that said, "ad parody – not to be taken seriously", and the magazine's table of contents also listed the ad as: "Fiction; Ad and Personality Parody."

Falwell sued Flynt, ''Hustler'' magazine, and Flynt's distribution company in the United States District Court for the Western District of Virginia for libel, invasion of privacy, and intentional infliction of emotional distress. Before trial, the court granted Flynt's motion for summary judgment on the claim of invasion of privacy, and the remaining two charges proceeded to trial. A jury ruled against Falwell on the libel claim, stating that the parody could not "reasonably be understood as describing actual facts about alwellor actual events in which eparticipated." On the claim of intentional infliction of emotional distress, the jury ruled in favor of Falwell and awarded him $150,000 in damages.

Flynt appealed to the Fourth Circuit. The Fourth Circuit affirmed, rejecting Flynt's argument that the actual-malice standard of '' New York Times Company v. Sullivan,'' applied in cases of intentional infliction of emotional distress where the plaintiff was a public figure, as Falwell concededly was. The ''New York Times'' standard focused too heavily on the truth of the statement at issue; for the Fourth Circuit, it was enough that Virginia law required the defendant to act intentionally. After the Fourth Circuit declined to rehear the case en banc, the U.S. Supreme Court granted Flynt's request to hear the case.

Opinion of the court

"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 is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions." The First Amendment envisions that the sort of robust political debate that takes place in a democracy will occasionally yield speech critical of public figures who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large". In ''New York Times'', the court held that the First Amendment gives speakers immunity from sanction with respect to their speech concerning public figures unless their speech is both false and made with "actual malice", i.e., with knowledge of its falsehood or with reckless disregard for the truth of the statement. Although false statements lack inherent value, the "breathing space" that freedom of expression requires in order to flourish must tolerate occasional false statements, lest there be an intolerable chilling effect on speech that does have constitutional value.

To be sure, in other areas of the law, the specific intent to inflict emotional harm enjoys no protection. But with respect to speech concerning public figures, penalizing the intent to inflict emotional harm, without also requiring that the speech that inflicts that harm to be false, would subject political cartoonists and other satirists to large damage awards. "The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events – an exploitation often calculated to injure the feelings of the subject of the portrayal". This was certainly true of the cartoons of Thomas Nast, who skewered Boss Tweed in the pages of ''Harper's Weekly''. From a historical perspective, political discourse would have been considerably poorer without such cartoons.

Even if Nast's cartoons were not particularly offensive, Falwell argued that the ''Hustler'' parody advertisement in this case was so "outrageous" as to take it outside the scope of First Amendment protection. But "outrageous" is an inherently subjective term, susceptible to the personal taste of the jury empaneled to decide a case. Such a standard "runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience". So long as the speech at issue is not "obscene" and thus not subject to First Amendment protection, it should be subject to the actual-malice standard when it concerns public figures.

Clearly, Falwell was a public figure for purposes of First Amendment law. Because the district court found in favor of Flynt on the libel charge, there was no dispute as to whether the parody could be understood as describing facts about Falwell or events in which he participated. Accordingly, because the parody did not make false statements that were implied to be true, it could not be the subject of damages under the ''New York Times'' actual-malice standard. The court thus reversed the judgment of the Fourth Circuit.

Aftermath

Dramatization

''The People vs. Larry Flynt'', a 1996 film directed by Miloš Forman starring Woody Harrelson as Flynt and Edward Norton as Flynt's lawyer Alan Isaacman features the case prominently. Burt Neuborne

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