NUMBER 3: Hustler Magazine and Flynt v Falwell 485 US 46 (1988): The pornographer, the priest and the parody

To make the top three of this list of defamation cases, you have to have one thing and one thing only: a film made about your case. Larry Flynt had that. It was nominated for an Academy Award. Woody Harrelson was in it. Ted Danson wasn’t.

In terms of defamation, Larry Flynt and his porn magazine, Hustler, possibly wrote the most defamatory thing ever. And in the good old USA, where Free Speech is king and The Right to Bear Arms, is prince, the pornographer won and the priest lost. What? I hear you say, well when you read what was written, it gets even more bizarre…

The case surrounded two personalities who could not have been more different. Remarkably, many years after the case was resolved by the US Supreme Court, the two became friends. This really is strange.

Anyway, back in 1983, Larry Flynt was the publisher of America’s most sexually explicit magazine, Hustler (no hyperlink, sorry). Jerry Falwell was a prominent fundamentalist protestant minister and vocal anti-porn activist. He was a co-founder of the socially conservative and politically active Moral Majority in 1979 which took lines against abortion, gay rights and pornography.

Flynt meanwhile, was probably the unofficial leader of the Immoral Majority. If it had a leader. After being discharged from the Navy at the age of 22, he ran a chain of failed strip clubs, and then branched out into publishing. Hustler became the most sexually explicit porn magazine in America and Flynt became its icon.

At that time, Campari (a classy alcoholic drink) was running an advertising campaign where famous people were interviewed and spoke of “their first time”. Obviously, the stories were meant to conjure images of that person’s first sexual encounter, but by the end it was clear that they were speaking of their first drink of Campari.

Falwell didn’t drink.

Nevertheless, Hustler decided that a parody of this ad, using Falwell as the subject, and text of a fake interview, would be hilarious. They copied the typesetting from the Campari ads and put it on the inside front cover. The article carried a picture of Falwell, and said this:
Jerry Falwell speaks of his first time”, with the following things apparently said by the priest:

  • His first time was with his mother in an outhouse

    The parody. Not to be taken seriously

  • He and his mother “were drunk off our God-fearing asses on Campari”;
  • Mom looked better than a Baptist whore with a $100 donation”;
  • His mother had “showed all the other guys in town such a good time”;
  • He and his mother had intercourse regularly afterwards;
  • I always get sloshed before I go to the pulpit. You don’t think I could lay down all that bullshit sober do you?

In small text at the bottom, at the insistence of a lawyer (who by this time may have wondered why he hadn’t accepted that job with that well-paying banking firm in New York), it added: “Ad parody not to be taken seriously” and in the table of contents: “Fiction: Ad and Personality Parody”.

Falwell sued in the District Court for Western District of Virginia. He sued for libel, invasion of privacy and intentional infliction of emotional distress. Flynt, meanwhile, decided that a good settlement tactic would be to run the Falwell Campari ad parody again… which he did in March 1984.

Before the trial, Flynt gave one of the more bizarre self-destructive depositions in the history of the law. At the time, he was in federal prison, having been convicted for Contempt of Court, and he was paralysed, having been shot by a white supremacist who was outraged by the publication of an interracial couple.

Sometimes you just can’t please people.

Larry Flynt

Anyway, back to the deposition, Flynt was manic depressive, on numerous medications and had been in solitary confinement for a time. During the deposition, he swore often and loudly. He told his own lawyer to shut up, particularly saying his lawyer should stop telling him not to answer questions, then answering them anyway. Flynt said that he had three witnesses to Falwell’s apparent “first time” with his mother, all of whom were in jail with him, and that the ad was a collaborative effort by him and many others, including Billy Idol, Yoko Ono and Jimmy Carter.

At the trial, Flynt’s lawyer tried to get the deposition ruled out, but ultimately the jury saw it, and you would think that would count against him. At the end of the trial, the jury of 12 ordered that there had been no defamation because reasonable people would not have interpreted the parody to contain factual claims. The invasion of privacy claim was also dismissed, but the claim for intentionally inflicting emotional distress was upheld and Falwell won $150,000.

Flynt appealed to the Fourth Circuit Court of Appeal and the original

The Free Speech Man

judgment was affirmed. But Flynt was not one for giving up. He went again to the US Supreme Court, obviously the highest court in the land.

The judgment was 8-0, and somehow, Flynt emerged victorious. It was held that the First Amendment’s free speech guarantee prohibits awarding damages to public figures to compensate them for emotional distress intentionally inflicted upon them. Apparently parodies of public figures which could not reasonably be taken as true are protected against civil liability by the First Amendment, even if intended to cause emotional distress….

Only in America.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>