When Jerry Falwell Lost

When Jerry Falwell Lost
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In the 1970s, Larry Flynt emerged as a pornographer and social critic who, in his own words, was intent on "pushing the envelope of taste" in the pages of Hustler, his unapologetically raunchy magazine.

In this aim, he did not fail. His publication stood apart, even within its genre, for its misogyny, gynecological treatments of the female form, racial stereotypes, bathroom humor, vicious political satire -- usually aimed at Republicans -- and reflexive irreverence.

Hustler featured a regular running cartoon of a pedophile named "Chester the Molester," published a photograph of Jackie Kennedy Onassis sunbathing nude on a yacht, and made fun of first lady Betty Ford's mastectomy. (The latter was the only one for which Flynt ever expressed remorse.)

Sometimes the material was there for its shock value; some of it was to titillate readers; some was there, well, just because Flynt could do it. After a woman was raped by several men on a pool table at a bar in New Bedford, Mass., Hustler produced a mock civic billboard, "Welcome to New Bedford, the Portuguese Gang Rape Capital of the World."

But beneath the crudity was a political message -- one embracing a socially libertine lifestyle. When "Deep Throat" star Linda Lovelace became an anti-porn crusader who said she'd been forced into X-rated films by her husband at the point of a gun, Hustler ran a bestiality snapshot of her from an earlier porn movie with the snarky caption, "Notice the gun in Fido's paw."

His publication came to the attention of various cultural traditionalists, not excluding a televangelist from Virginia who was making his own name in the new media culture. Larry Flynt wasn't a fellow to turn the other cheek, however, and he fired back at Jerry Falwell: Inside the front cover of the November 1983 issue was a parody of Jerry Falwell talking about his "first time." It was modeled after actual Campari liqueur ads that included interviews with various celebrities about their "first" times -- ostensibly tasting Campari, but with an obvious sexual double entendre.

In the telling of Hustler's editors, Falwell's "first time" was a drunken incestuous rendezvous with his own mother in an outhouse. Falwell wasn't a subscriber to the magazine, but a news reporter informed him of the parody. As it happens, Falwell's mother had recently died. Incensed, he sued in state court for libel and intentional infliction of emotional stress.

At the trial, a jury ruled that a reasonable person wouldn't believe that Hustler was really claiming these outrages were true -- but they sided with the pastor on the emotional stress part of the tort. A federal judge upheld the verdict, as did the U.S. 4th Circuit Court of Appeals. So the Supreme Court took the case, and its February 24, 1988 ruling surprised many -- including Flynt.

"This case presents us with a novel question involving First Amendment limitations upon a state's authority to protect its citizens from the intentional infliction of emotional distress," Chief Justice William H. Rehnquist wrote in an 8-0 decision.

"We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most," he added. "[Falwell] would have us find that a state's interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do."

To decide otherwise, the eight justices reasoned, would effectively outlaw political cartooning. This, too, the high court ruled, would be an unwise and unconstitutional decision to render. Rehnquist quoted approvingly from the words of a cartoonist:

"The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting, and is always controversial in some quarters."

Carl M. Cannon is the Washington Editor of RealClearPolitics and author of the Morning Note, from which this piece has been adapted.

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