Lust in Action: Jerry Falwell and Larry Flynt 3

It would be misleading to say that Hustler v. Falwell extended the scope of First Amendment speech protections. What the Supreme Court did, essentially, was to preserve the scope that already ex¬isted, which they did by rejecting an effort by the Appeals Court to allow a public figure, absent a finding of libel, to recover on a claim of emotional distress. The Appeals Court had conceded that Fal- well’s defamation claim was ruled out by the landmark case of New York Times Co. v. Sullivan (1964), which held that a public official cannot recover from a newspaper for libel unless he proves “actual malice” on the part of the paper, and by the subsequent decision in Curtis Publishing Co. v. Butts (1967), which extended the rule to cover “public figures” (not just “public officials”) generally. The con¬stitutional logic in these cases involves the concept of “breathing space”: the Court felt that the press requires some leeway in mat¬ters of fact if public debate is to be uninhibited, as the First Amend¬ment presumably intends it to be. Public figures are people who, although they do not hold public office, have made themselves par¬ticipants in public debate, a definition that clearly applied to Fal¬well. (An effort to extend the protection to cover the unintentional defamation of private citizens in stories relating to matters of public interest was rejected by the Court in Gertz v. Robert Welch, Inc. [1974].) But the appellate court did conclude that a public figure’s claim of emotional distress could survive a failure to prove “actual malice” under the New York Times standard. So long as Hustler acted recklessly and with an intention to inflict emotional distress (as Flynt essentially conceded that it had), Falwell was entitled to damages.
The Supreme Court regarded this as an attempt to make an end run around New York Times. The lower court decision meant that a public figure who cannot establish that he has been defamed can still argue that he has been distressed. In rejecting this theory, Rehnquist drew an analogy between the Campari parody and a po¬litical cartoon. It is in the nature of satire and parody, he said, to wound, and “in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.” If Falwell had been a private figure—or, presumably, if the communication of the insult had been private— there might have been a tort. But in the public realm, the Constitu¬tion washes the insult clean.
The classic analysis of Hustler v. Falwell is by Robert C. Post, in an article which appeared in the Harvard Law Review in 1990 and which he reprinted in his book Constitutional Domains. The case, as Post demonstrates in penetrating detail, represents a collision be¬tween two types of legal claims—a claim of personal injury made by Falwell versus a constitutional claim of free speech asserted by Flynt—which represents in turn a collision between two radically different theories of civil society. Falwell sued on the basis of the so- called dignitary torts: defamation, invasion of privacy, and emotional distress. We allow individuals to recover for these injuries to their dignity not because we wish to chill or restrict public debate, but because we wish to foster that debate by sanctioning expressions which have no purpose except to wound or intimidate other speak¬ers. In the case of the infliction of emotional distress, the standard for determining when speech becomes tortious is the standard of outrageousness, which is, necessarily, a community standard. Be¬havior is outrageous, as the second Restatement of Torts helpfully ex¬plains, when “the recitation of the facts to an average member of the community would . . . lead him to exclaim, ‘Outrageous!’ ” Hustler s Campari ad parody is clearly justiciable under such a standard.
Flynt’s defense against Falwell rests, as Post sees it, on a differ¬ent theory. The First Amendment law on which Flynt relied posits a realm of “public discourse,” populated by “public figures” like Fal¬well and Flynt and operating through media like Hustler (and the New York Times), in which community-based norms of civility, such as its notion of outrageousness, do not apply. In extending First Amendment protections, the Court has generally argued that in a diverse society, a society of many values and tastes, one man’s out¬ rage is another man’s sincere opinion. The realm of “public dis¬course” is thus not only characterized by immunity from liability for giving offense; one might even say that it is defined by that immu¬nity. The paradox is this: by extending the protections of the First Amendment we seek to ensure the fullest possible participation in the democratic determination of communal norms and values, but we simultaneously prevent ourselves from using those norms and values to regulate expression which we consider, as a community, detrimental.
Post has put his finger on what is unsettling, for many people, about the opinion in the Falwell case, and on what is also unsettling, for many people, about pornography of the kind Flynt has made a fortune purveying; and the conflict he articulates is what accounts for the liberal backlash against The People vs. Larry Flynt. In cele¬brating the constitutional triumph, the movie seems oblivious of the cultural damage. The movie has an easy time of it by virtue of the fact that the plaintiff in Hustler v. Falwell was a man regarded by many Americans, and by most liberals, as a self-righteous and med¬dlesome proponent of illiberal policies—in other words, a slightly dangerous man. But Falwell’s views and personality are irrelevant to the constitutional issues in his suit, and one can put what is at stake in those issues much more starkly by asking whether, if the butt of Hustlers parody had been, say, Martin Luther King, Jr., Oliver Stone and Milos Forman would have made a movie about it.

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