The question the Falwell case poses (as Post analyzes it) is whether a principle of free speech can be devised which is firm enough to protect dissident and unpopular opinion but not so in¬flexible that it protects hatemongers and speech bullies along with it. Many intelligent people, in the years since Hustler v. Falwell was decided, have tried to formulate such a principle, although the task seems doomed by the impossibility of coming up with a general standard that would allow courts to parse unerringly the difference between hate speech and flag-burning, or between Larry Flynt and Robert Mapplethorpe. Protect one type of speech offensive to some and it is hard not to protect all. For people who have concluded that the social costs of a general protection are smaller than the social costs of a more elaborate and discriminating approach, Hustler v. Falwell (or even the hypothetical Hustler v. King) is an easy case.
But reduced to legal terms like this, the really significant things in most actual cases—the things that make the issues matter to us in the first place—tend to drop out, and this seems to be what has happened in The People vs. Larry Flynt. The anthropology of the story is a lot more interesting than the jurisprudence. For what is notable, as a cultural matter, about most speech cases is the sym¬biosis of the two sides. Orthodoxy depends upon heterodoxy, vic¬timization requires persecution, good taste creates bad taste: the observation is perfectly obvious, but it is precisely what drops out in a legal analysis. In legal terms, Jerry Falwell and Larry Flynt repre¬sent opposed interests, each out to bring down, or at a minimum to chill, the other side. But in cultural terms, the Falwells and the Flynts are mutually reinforcing entities. They acquire their defini¬tions from each other, and what is fascinating about them is not that they ended up in court together, but that they arose together, they fell together, and their worlds constantly interpenetrated one an¬other—were, at bottom, the same world.
The first issue of Hustler appeared in 1974. The magazine became successful, and world famous, in 1975, when it published a five-page photo spread of Jacqueline Kennedy Onassis in the nude. The pic¬tures had been taken by an Italian paparazzo, with a telephoto lens, who had staked out the Greek island of Skorpios, where the Onas- sises had a house. They had been offered first to Playboy and Penthouse, the established magazines in the field, but Playboy and Penthouse turned them down (exercising scruples they would soon find good reasons to abandon). Flynt bought them, he claims in his autobiography, for $18,000, and the issue of Hustler in which they appeared sold a million copies off the newsstand in a matter of days. It was the perfect combination of titillation and personal violation, and once Flynt got his hands on the formula, he never let go.
Now, the distinctive thing about Hustler is that it was not Play¬ boy. This is a point that gets made in The People vs. Larry Flynt, but made in the wrong way. The filmmakers stress the fact, which is un¬doubtedly correct, that Flynt set out to create a magazine for down- scale readers. Playboy was a self-proclaimed lifestyle magazine. It accompanied its photographs of partially clad and unclad women with articles on fashion, high-end audio equipment, and expensive cars, and with fiction by big-name writers like John Updike and in¬terviews with noteworthy figures like Buckminster Fuller. Flynt’s initial insight was that the typical consumer of nudie pictorials was probably not realistically in the market for high-end audio products and did not have much interest in the views of Buckminster Fuller. So he set his sights on the sort of reader for whom solemn inter¬views with noteworthy figures represented the height of preten¬sion—the sort of reader who would get more pleasure from seeing such people lampooned than from reading their interviews. Playboy would have interviewed Jerry Falwell; Hustler ran a Campari ad parody.
All very fine and democratic, but it leaves out a more significant point of contrast, and that has to do with the partially clad and un¬clad women. Playboy published its first issue in 1953, and in spite of its liberated attitude toward sex, it was, in its attitude toward women, very much a magazine of that decade. Playboy women were naked, but they were in every other respect as inaccessible and chaste as nuns. They were women who had been somehow reduced to flesh and elevated to sanctity at the same time. They represented some fantasy of fifties bachelorhood: upstanding, clean, and mirac¬ulously free of guilt. They had perfect breasts in the same sense that they had perfect teeth. There was no suggestion that they had any sexual interests of their own.
The mass-market pornography of the so-called “sexual revolu¬tion,” the pornography that emerged in the late sixties and early sev¬enties and flooded into bookstores, newsstands, movie theaters, and ultimately video outlets, was based on a different premise. It has be¬come common to talk about pornography as the representation of male dominance and female submission, as sending the “message” that women were put on earth for the sexual gratification of men. This is the way it is described, for example, by Catharine MacKin¬non and other feminists who advocate censorship, and the descrip¬tion tends to be accepted even by people who reject MacKinnon’s legal arguments. But mass-market pornography was not based, in the beginning, anyway, on the image of the sex-driven male. It was based on the image of the sex-driven female. The pop ideology of sexual liberation was that, contrary to the lesson taught by centuries of moral conditioning, women enjoyed sex as much as men, and in the same way as men were imagined to enjoy it—that is, actively, promiscuously, and without guilt. Most of the pornographic films of the era that achieved the status of cultural chic were about women in search of sexual pleasure: I Am Curious (Yellow) (1968), Deep Throat (1972), The Devil in Miss Jones (1973), and the soft-core Em- manuelle films, which began in 1974.