Hustler V. Falwell

MALE SPEAKER: Major funding for BackStory is provided by an anonymous donor, the National Endowment for the Humanities, the University of Virginia, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations.

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MALE SPEAKER: From the Virginia Foundation for the Humanities, this is BackStory.

BRIAN: Welcome to BackStory, the show that explains the history behind today’s headlines. I’m Brian Balogh.

JOANNE: I’m Joanne Freeman.

ED: And I’m Ed Ayers. Joanne, Brian, our colleague Nathan Connolly, and I are all historians, and each week we explore the history of a topic in the news.

JOANNE: OK, so Brian, Ed, let’s begin today’s show in the hallowed chamber of the United States Supreme Court.

MALE SPEAKER: We’ll hear argument first this morning number 86-1278.

JOANNE: In December of 1987, the court’s nine justices heard from a rather odd couple.

MALE SPEAKER: Hustler Magazine and Larry C. Flynn versus Jerry Falwell.

JOANNE: The case before them was Hustler v. Falwell, a publisher of pornography versus a polarizing preacher. The justices faced a novel argument, that Hustler Magazine had a First Amendment right to make fun of the Reverend Falwell without fear of being sued. Here’s how Hustler’s lawyer put it.

MALE SPEAKER: In this situation, the new area that is sought to be protected is satirical critical commentary of a public figure, which does not contain any assertions of fact.

JOANNE: In other words, satirizing a public figure, no matter how cruel or insulting, should be free speech that’s protected by the First Amendment.

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ED: The battle began with a fake ad in Hustler a few years earlier. It spoofed popular Campari liqueur ads of the early ’80s that featured celebrities provocatively recounting their first time. Now the punchline and the real ads was that the celebrities were, of course, recalling their first sip of Campari, not their first sexual experience.

RODNEY SMOLLA: So Hustler did an exact replica of the Campari ads.

ED: This is Rodney Smolla, Dean of the Delaware Law School at Weidner University.

RODNEY SMOLLA: But they did a very vicious twist on it.

ED: Hustler’s ad featured a fake interview of Falwell in which he described his first time.

RODNEY SMOLLA: But it was enormously vulgar. So it begins with my first time was in an outhouse with my mother, and that’s about as far as we can go on radio, I think, without having you lose your license from the FCC.

ED: Flynt and Falwell had a long history of targeting each other. But this time, Falwell said, Flynt had crossed a line.

RODNEY SMOLLA: And the idea of him having an incestuous relationship with his mother made him absolutely livid with rage. And he instantly made the decision, I can’t let this stand. I have to fight back.

ED: But Falwell couldn’t just sue Flynt for publishing a lie. The Hustler ad included a footnote that said, ad parody, not to be taken seriously. So Falwell also sought damages for emotional distress.

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ED: As the case wound its way to the Supreme Court, media organizations, serious and satirical alike, paid close attention.

RODNEY SMOLLA: This was not just a case about a pornographic magazine, but a case that really put the whole world of satire and parody and harsh criticism of public figures on trial.

ED: That’s when Smolla got involved. As a young lawyer, he represented mainstream media companies, like The New York Times, concerned that a ruling against Flynt would affect what they could say about public figures. Flynt’s lawyer, Alan Isaacman, summed up the stakes for the justices this way.

ALAN ISAACMAN: Is rhetorical hyperbole, satire, parody protected by the First Amendment?

ED: Falwell’s lawyers argued that Flynt’s crude satire contributed to the degradation of American culture.

RODNEY SMOLLA: And it’s going to become the law of the jungle and our society will be made more coarse if you don’t draw the line somewhere.

ED: But vulgarity is a vague concept, and the justices carefully tested the arguments. They pressed both sides to pinpoint a clear definition of acceptable satire that could help measure emotional distress. Smolla says that in the end the case hinged on one particular moment. An unintentional laugh line.

RODNEY SMOLLA: I’ll never forget I sat right behind the lawyer, Alan Isaacman. He’s searching for some way to put it. And he says–

ALAN ISAACMAN: Instead of Joe Falwell speaking from the television with a beatific look on his face and–

RODNEY SMOLLA: And then Isaacman put his hands out like he was gesturing to the court, and he said–

ALAN ISAACMAN: Instead of that situation, Hustler is saying, let’s deflate this stuffed shirt. Let’s bring him down to our level.

RODNEY SMOLLA: And it looked like he was saying, you know, down to Thurgood Marshall’s level, you know, or [INAUDIBLE] level. And it just caused the justices to laugh. And William Rehnquist, the Chief Justice, he laughed so hard he went under the bench for a second like he doubled over and got up. And I remember looking to another one of my colleagues, and I whispered, we just won the case. Because if they could laugh about it, I thought they could see we cannot, we cannot rule this out of bounds in American society.

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JOANNE: The Supreme Court ruled unanimously in favor of Flynt, and in essence, in favor of the American tradition of satire. Writing for the majority, Chief Justice William Rehnquist invoked jokes about the tall and gangly Abraham Lincoln. He also mentioned Thomas Nast cartoons, skewering New York machine politician Boss Tweed, and drawings of Teddy Roosevelt with enormous teeth. This case had no legal precedent, but there were plenty of historical precedents.

RODNEY SMOLLA: There had been a long American tradition of political cartoons, political lampoons, vicious attacks on public figures, sometimes funny, sometimes not funny that had always been part of our culture.

JOANNE: Rehnquist wrote, from the viewpoint of history, it is clear that our political discourse would have been considerably poor without them.

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